The importance of having a clear policy on employee monitoring has been highlighted in new guidance published by the Information Commissioner’s Office (ICO). Consultation on draft new guidance for employers on monitoring at work has now begun. It is envisaged that the new guidance, when finalised, will replace the ICO’s current guidance on monitoring contained in the employment practices code 2011.
The draft reflects the emergence of new technologies which have been used to monitor workers in recent years, particularly since the shift to remote working during the Covid-19 pandemic. Whilst UK protection laws, set out in the UK General Data Protection Regulation (GDPR) and Data Protection Act 2018, do not prohibit the use of monitoring technologies by employers, employee monitoring is expected to be done in a way which is consistent with data protection requirements and other applicable legislation such as the Human Rights Act 1998 and Equality Act 2010, as it involves an intrusion into the privacy of an individual.
The ICO says that employers should be clear about their purpose for monitoring. Where personal data is collected for one purpose, it cannot be used for another purpose – unless the two purposes are considered “compatible”; and where employers want to change the purpose for monitoring, they should only do so if the new purpose relates to a clear legal provision that is in the public interest; clearly in the worker’s interest to do so; or related to criminal activity at work, gross misconduct and health and safety breaches which jeopardise workers. The ICO recommends employers consult employees before any monitoring, which can foster trust and save employers time and resource in responding to complaints at a later stage.
The draft guidance is open for consultation until 11 January 2023.
