Monitoring remote employees: will it push people back to the office?

Reports have revealed that the Cabinet Office is monitoring staff computers and wifi logins in a bid to persuade them to return to the office, and it may lead other employers to think that they can follow suit without legal ramifications.

According to The Telegraph the use of computer monitoring is part of a crackdown previously led by Jacob Rees-Mogg.

For any employers seeking to do the same, it is imperative that they are mindful of the data and employment laws which are relevant to monitoring employees.

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Since Brexit, GDPR has been retained as UK-GDPR. Tracking employees based in the UK through wifi and computer logins must be handled carefully to ensure it is compliant with UK law. Where employees are based overseas but monitored from the UK, local advice will also be needed. 

Standard practices, such as the automated monitoring of emails which check for viruses are unlikely to be controversial. However, there are some types of monitoring (such as analysing keyboard activities or requiring employees to show their constant presence at their remote desks by activating their laptop cameras), which are considerably more intrusive and require very careful consideration before they are introduced to be able to justify their use.

It is extremely rare that covert monitoring for performance management will be acceptable from a data perspective. An employee would be highly likely to challenge the use of covert monitoring in any dismissal scenario and may well claim unfair dismissal.

Both from a data and an HR best practice perspective, employers should clearly communicate to their staff why they need to be monitored, what form the monitoring will take, how the information gathered will be stored and used and if it will be shared with any other parties (such as the police in the event that criminal activity is discovered). 

Employees should then be mindful that data gathered from lawful monitoring may be used in disciplinary or capacity processes.

Employers need to be careful about treating one group of employees differently to another group as this may give rise to indirect discrimination claims (most likely based on sex or disability) as well as potential failure to make reasonable adjustments, if the home working has been implemented to help an employee with a disability.

Employers should consider the home working environment of their employees and be mindful of issues surrounding child or elderly care, which still mainly impact female employees.

It has been over two years from remote working was introduced as the new norm and it is undoubtedly here to stay, at least as part of common hybrid arrangements allowing employees to have flexibility, independence and greater mobility.

In what is being increasingly described as a candidate’s market with many companies advertising remote work as an incentive, it is surprising that Whitehall management appear to have taken this decision.

If employers are struggling to trust their employees, it is highly unlikely that monitoring those working remotely will solve the problem. Assessing employees by their performance and work product is likely to be fairer and a better indicator of their contribution to the business, than simply establishing the number of hours they spend at their desk.

Rachel Tozer is employment partner at Keystone Law