Covid-19 has thrust large numbers of employees into working from home. But are they? Working, that is.

Perhaps you're confident that they are. Some reports certainly suggest that homeworkers can be more productive, and you might have good reason to trust your employees: maybe their output confirms that they're putting in the hours.

But perhaps you're not so sure. Maybe you're tempted to check.

Electronic monitoring – the options

If you're thinking about electronic monitoring, there are plenty of options. You may already use some of these when staff are in the workplace. You can, for example, see who is logged on to a system or application at any time, and how long they use it. You can see websites visited, and for how long. You can check email messages sent and received. You can even monitor keystrokes, take regular screenshots, or log absences from computer screens. 

However, the fact that vendors are selling these monitoring systems does not mean that their use is lawful.

What about data protection?

Data protection rules don't necessarily prevent employee monitoring; but they do impose some restrictions.

Before monitoring, you need to carry out a data protection impact assessment. This will include identifying a valid reason for monitoring. Most likely, that reason will be that monitoring is 'necessary for your legitimate interests', such as monitoring performance, checking the quantity or quality of work, or improving productivity.

But, is what you are proposing actually 'necessary' and 'proportionate'?

  • Will it give you the right information?
  • Will it improve productivity; or could increased anxiety lead to the opposite effect?
  • Are there less intrusive alternatives? Perhaps improving communication, and focusing on results – are your employees hitting targets, producing high-quality work, and meeting deadlines?
  • Does it go further than necessary? Could it be more targeted?

Think about what you do in the workplace. If you would not watch employees' computers over their shoulder in that setting, then it is unlikely to be reasonable to use highly intrusive monitoring such as key stroke logging or screen viewing software when they are at home.

Your 'legitimate interest' must also outweigh the adverse impact on employees. Consider, for example:

  • How intrusive is your monitoring?
  • Is it oppressive or demeaning?
  • What is the likely impact on employee relations, trust, wellbeing, stress and anxiety?

If the impact of particular monitoring on employees' privacy and rights outweighs your legitimate interest, then that monitoring will not be justified.

Other risks

Aside from data protection, you need to be confident that your monitoring doesn't breach separate legislation which strictly controls when employers may intercept or monitor communications, and in particular prevents the deliberate interception of personal communications.  Contact us if you need more information on this.

Consider whether there is a risk of discrimination, or a breach of trust and confidence with your employees.

Reputation is also a concern. Being accused of overbearing practices is unlikely to play out well in the eyes of customers, staff or job applicants.

If you decide to monitor…

  • Give employees appropriate information in advance via privacy notice and policies. Simply saying that monitoring is happening is not enough; you need to provide a certain level of detail.
  • Ensure its use is proportionate.
  • Minimise the information you collect.
  • Limit access to those with a 'need to know'.
  • Take appropriate steps to ensure the security and integrity of the data.
  • Only keep it for as long as necessary.
  • Take particular care if employees use their own devices for work – monitoring is then more likely to pick up their personal communications, or those of their families.

Homeworking is likely to stick around long after the pandemic has passed. Finding a solution to managing performance that works for you, and your employees, is worth some thought.

More useful information on employee monitoring is in this blog from Brodies' data protection expert, Martin Sloan.

Our Workbox subscribers can also use our dedicated Data Protection section, which includes a step-by-step guide to Employee Monitoring.


Kathleen Morrison

Practice Development Lawyer

Lynsey Smith

Trainee solicitor