Employers monitoring employees – new guidance published

With the recent rise in flexible and hybrid working, coupled with advances in technology, employers may increasingly be considering monitoring employees during their working hours.

The Information Commissioner’s Office (ICO) has published guidance for employers on monitoring employees lawfully, transparently and fairly. Employment practices and data protection – Monitoring workers aims to help employers to comply with their obligations under data protection legislation.

Monitoring employees

The ICO points out that monitoring could take place on work premises or elsewhere and can include monitoring during or outside working hours. It gives examples of the form that monitoring can take, including tracking calls messages and keystrokes, taking screenshots, camera surveillance, webcam footage, or using productivity tools which log how employees spend their time.

The guidance includes questions, checklists and examples for employers. It reminds employers that are considering monitoring employees that they must:

Make employees aware of the nature, extent and reasons for monitoring
Have a clearly defined purpose for the monitoring and use the least intrusive means to achieve it
Have a lawful basis for processing of employee data
Consider whether monitoring involves special category data, for example genetic or biometric data, or data concerning health or disability
Inform employees about the monitoring in a way that is accessible and easy to understand
Only keep information relevant to the purpose for which it is being processed
Carry out a Data Protection Impact Assessment for any monitoring that is likely to result in a high risk to the rights of employees. High risk processing could include, for example, processing biometric data, keystroke monitoring, monitoring that may result in financial loss (such as performance management) or using profiling or special category data to decide on access to services.

Comment

The ICO commissioned research that found that 70% of those surveyed said they would find monitoring in the workplace intrusive and only 19% said they would feel comfortable taking a new job if they knew that their employer would be monitoring them. The ICO says that this indicates that ‘today’s workforce is concerned about monitoring particularly with the rise of flexible working – nobody wants to feel like their privacy is at risk, especially in their own home.’

It is important for employers to be aware of their obligations under data protection legislation when considering monitoring of employees and to keep up to date with ICO guidance.

The ICO has also recently published guidance for employers on processing information about employees’ health and responding to data subject access requests.

20 October 2023

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