The European Court of Human Rights has also considered this issue on a number of occasions in recent years specifically with reference to whether an employee's right to private and family life is breached by covert monitoring. Many of those decisions have come out in favour of the employer, and in one recent case where the employee was successful - Barbulescu v Romania - a key factor was the employer's failure to expressly advise the employee of the extent of the monitoring that was taking place.
Last year in the case of Argus Media Limited v Halim the High Court held that an employer was entitled to inspect emails sent by an employee to his wife via the work IT system in circumstances where the employer's Electronic Information and Communications Policy authorised them to do so. The Court also concluded that even if there had been a breach of privacy it was not one that was calculated or likely to destroy the relationship of trust and confidence as claimed by the employee.
These cases could give the impression that as long as an employer informs an employee of the extent of their monitoring, there is little the employee can do to protect his or her privacy. The bargaining power between employer and employee is rarely equal, and that can lead to employees feeling unable to challenge the extent of the monitoring being proposed by the employer. For many, the thought of being monitored in the workplace may be intrusive, but it is the employer's place of business. The significant increase in remote working, as a result of the COVID-19 pandemic, has now brought monitoring into employees' homes.
With multiple press reports on increased levels of employee surveillance and magazine articles on the "best employee monitoring software" it is not difficult to see why some employees have become concerned about the extent to which their activities are being monitored. In some sectors monitoring may be a necessity - the Financial Conduct Authority recently warned financial services firms that it expected them to put in place rigorous oversight on traders working from home - but it is far from a one size fits all issue.
Homeworking, undoubtedly, adds another layer of complexity for employers trying to find the right balance between respecting an employee's right to privacy and oversight of employee productivity, performance and appropriate use of IT systems. Is an expectation that employees will join team calls with their webcam turned on reasonable or an unnecessary invasion of privacy? What about tools that check whether an employee is "active"? Is monitoring app use acceptable? In highly regulated environments is the use of facial recognition tools checking whether employees are away from their desks going too far? Employers will not want to be finding out the answers to these questions via court proceedings.
Building and keeping trust between employer and employee is arguably even more important when work is done remotely than in an office where there is regular face to face interaction. In a recent report undertaken by the CIPD, 73% of employees who responded felt that introducing workplace monitoring would damage trust between them and their employers. While that would not necessarily amount to a breach of the implied term of trust and confidence (which may justify an employee resigning and claiming constructive dismissal) it highlights the need for employers to be mindful of how employees may react to a roll-out of monitoring software and whether such a step is likely to improve employee engagement.
Encouraging managers to check in regularly with employees and build strong working relationships with them could limit the need for additional surveillance methods. Using the carrot of motivating employees to engage with the aims of the business rather than the stick of being caught out via monitoring is more likely to lead to both improved productivity and improved employee wellbeing, something of a win/win in current circumstances. Equally, not all monitoring is about checking up on employees' performance - it can be used to collect data which will be used to enhance workers wellbeing and where this is the case this should be clearly explained.
In most cases surveillance of employees should only be carried out with their knowledge and express consent, and the extent of any monitoring also needs to be clearly explained. However, the starting point for employers, whether considering monitoring in the workplace or at home, should be how little not how much monitoring is required.