We had already seen an increase in the number of employees working from home, but that has accelerated as a result of the Pandemic. Many employers are asking themselves, "what are my responsibilities for employees whilst working from home from a health and safety perspective?", "Can I monitor their working practices whilst at home?"
Employers will need to tread very carefully when it comes to monitoring employees' working patterns more closely because getting this wrong could be a serious breach of data protection legislation and be damaging for the company's reputation. It is unlikely to be enough cause to introduce workstation style monitoring simply on account of an increase in home working due to the Covid-19 pandemic.
Employers will need to ask themselves why the relevant level of monitoring is needed and think hard about whether there is a less intrusive way of achieving the same end. Data protection laws detail certain checks and balances that an employer will need to carry out, including; a detailed assessment of the impact on the individual's privacy as a result of the monitoring, and a balancing of the interests of the employer against those of the employee.
To the extent that the monitoring is to protect employees - such as for health and safety reasons - then the more likely it is to be lawful. Even when employers are satisfied that the monitoring is both justified and lawful, they will need to update privacy notices and policies and ensure that the employees are made aware in an open and transparent way about the undertaking of the monitoring. Such measures will be relevant not only to compliance with the core principles of the data protection regime, but also to whether affected employees can validly point to an infringement of the right to private and family life guaranteed under human rights law.
Members of our HR and Data teams will consider these and related issues in a webinar. Learn more here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.