‘Makin’ an insurer pay? It’s a matter of interpretation
Makin v Protec & QBE [2025] EWHC 895 (KB); Burnett v International Insurance Company of Hanover Ltd [2021] UKSC 12 Two cases, both alike in dignity. But with very different…
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87% of UK companies say they have adapted to hybrid working.¹With the rise in remote work has come a surge in workplace monitoring as employers strive protect themselves from security risks and by 2025, it is estimated that 70% of large employers will be monitoring their employees. This is a 10% rise from 2021 when employers were monitoring employees as a result of the pandemic,² and the use of employee surveillance has become a topic of increasing concern.
There’s nothing new about workplace surveillance, however, as technology has advanced, so have the ways in which employers can monitor their staff. Employee surveillance takes various forms, ranging from traditional methods like CCTV cameras, to more sophisticated technologies such as computer monitoring and GPS tracking. While these measures may be well-intentioned, they raise important questions about privacy, trust, and the boundaries of employer authority.
As employers seek to enhance productivity and protect company interests, the delicate balance between surveillance and employee rights is under constant scrutiny. This article explores the nuances of employee surveillance in the workplace, focusing on the legal risks and implications under Scottish employment law.
Employee monitoring can have many benefits for employers, including if the employee monitoring software detects fraudulent or unacceptable employee behaviour, the monitoring system provides evidence to back up taking action against the employee. For example, if you must discipline an employee for lateness, your time-tracking system provides documentation of how often they were late.
The Employment Rights Act 1996 and the Data Protection Act 2018 play crucial roles in defining the rights and responsibilities of employers and employees. Any surveillance measures must be proportionate and respectful of an individual’s privacy. Employers should clearly communicate the extent and purpose of surveillance to employees to ensure compliance with privacy rights.
The Data Protection Act 2018 enforces strict guidelines on the processing and handling of personal data. Employers must obtain informed consent from employees before implementing surveillance measures that involve the collection of personal information.
Employers who monitor electronic communications, such as emails or internet usage, must tread carefully. Employees in Scotland have a reasonable expectation of privacy in their communications, and any monitoring must be transparent, proportionate, and in line with established legal standards.
Additionally, with the prevalence of social media, employers must be cautious when monitoring employees’ online activities. While monitoring work-related social media accounts may be justifiable, intruding into an employee’s private social media presence without proper cause could lead to legal challenges.
Employees who feel their privacy rights have been violated may bring legal action against employers. To mitigate this risk, employers should establish clear policies on surveillance, ensuring that employees are aware of the extent and purpose of monitoring. Further risks arise where employers fail to comply with data protection regulations which can trigger investigations by the Information Commissioner’s Office (ICO). Employers found in violation may face fines and reputational damage. Additionally, excessive or unjustified surveillance may contribute to an employee’s claim of constructive dismissal. Employers should carefully assess the necessity and proportionality of surveillance measures to avoid such claims.
Here are 7 top tips for employers to mitigate risks of liability when implementing workplace surveillance procedures:
Balancing the need for employee surveillance with legal compliance is a complex challenge for employers in Scotland. By respecting privacy rights, obtaining informed consent, and adhering to data protection regulations, employers can navigate the landscape of surveillance while minimising legal risks. it is crucial for employers to have comprehensive policies in place on employee surveillance and ensure that all employees are aware of what is being monitored and the reasons for this. Striking this delicate balance is essential to fostering a workplace environment that is both productive and respectful of individual rights.
If you would like any further information on this topic do not hesitate to contact a member of BTO’s STEM Employment Team.
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