The legal implications of software surveillance

In the aftermath of Covid-19, with more employees home working than ever before, it is perhaps unsurprising that there has been an increase in the implementation of software surveillance.

Some employers want to be reassured that employees are engaging with their work obligations and maintaining their productivity, despite physical distance from the office. However, with recent revelations of some employers going as far as taking screen grabs of employee’s monitors every 10 minutes or so, both in and out of the office, it raises questions as to the legal considerations, which employers need to keep in mind, before they can adopt intrusive measures to monitor their staff. 

Data protection  

Inevitably through software surveillance, employee’s personal data is processed which triggers GDPR and the obligation to process employee’s data in a "fair, lawful and transparent manner". Employers should carefully consider and work through data protection principles, taking legal advice to protect themselves from committing any wrongdoing against the employee.  

Read more: Worker surveillance disproportionately affects low-skilled jobs

A key takeaway for employers, whether they are beginning to monitor, or increasing the intensity of their surveillance, is to ensure that employees remain fully informed. The more information, which is provided to the employee, the less likely the employer is to breach GDPR, and any privacy issues. Policies, including the relevant information, should be prominent on IT systems with employee’s attention being directly drawn to them. Useful discussions or training could be undertaken as a precautionary measure to ensure the employee has been given and fully understands the surveillance software and how and when their data is processed.

Unless the employer can successfully rely on one of five lawful grounds for processing personal data – which include the processing being necessary in connection with the employment contract, to comply with legal obligations, to protect vital interests, and public interest/official authority or legitimate interests – employers will need to rely on the sixth ground, which is the employee’s consent. This requires that employees are given complete information so that their agreement, if given, is based on a genuine and informed choice. It is advisable to obtain their consent even if one of the other five grounds could potentially apply.  

Respect for private life  

Article 8 of Human Rights Act 1998 (the Act) preserves the right to respect for private and family life, our home and correspondence. If surveillance is challenged by the employee, then the court would evaluate whether the monitoring is proportionate, taking account of the Act. For employers who are apprehensive about where the line is drawn between protecting their business interests and respecting employee’s privacy, preparing impact assessments can help to support the employer in balancing those needs, encouraging reflection about whether the proposed monitoring is proportionate and necessary or overly intrusive.  

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

The employer should also consider whether software surveillance will be regarded by the employee as overbearing and seeking to undermine trust and confidence in the relationship: an implied term of every employment contract. There is a fine balance to strike.

On the one hand, monitoring employees in this way (or at all) might have a positive impact on productivity, acting as a deterrent to those inclined to try and take advantage of the company’s goodwill. However, if employees feel they are not respected or trusted, this could damage the relationship irreparably and cause unforeseen consequences including grievances and resignations.  

It should also be noted that employers have a duty of care to their employees, which includes protecting their mental health – something which is increasingly cited as being damaged by work-related stress and causing long-term sickness absence; therefore, when employers are making decisions as to whether they should be monitoring staff and the methodology, they should balance their perceived business reasons against the employee’s well-being, the potential impact on the employment relationship and their legal obligations.   

By Tania Goodman, partner and head of employment, and Olivia Barratt, trainee solicitor at Collyer Bristow