Surveillance in the Workplace: Protecting Productivity or Invading Privacy?

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 Legal Position

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.

Legal Risks and Consequences

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:

1. Employers must have a legitimate reason for implementing workplace surveillance.
   Common reasons include ensuring the safety and security of employees, protecting company assets, preventing misconduct, or complying with regulatory requirements.
2. Notification and Transparency
   Employers are generally required to inform employees about any surveillance measures in place. This could involve providing clear information about the type of surveillance used, the reasons for it, and the potential consequences for employees.
3. Data Protection Laws
   The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 regulate the processing of personal data in the workplace. Employers must comply with these laws, including obtaining and processing personal data lawfully and transparently.
4. Employee Consent
   While consent is one legal basis for processing personal data, it may not be suitable for workplace surveillance. Employees may feel compelled to give consent, and freely given consent can be challenging to demonstrate in an employment context. Further, employers should collect and process only the minimum amount of personal data necessary for the intended purpose. Excessive or unnecessary surveillance may breach data protection laws.
5. Impact Assessments
   Conducting a Data Protection Impact Assessment (DPIA) is a requirement under the GDPR for certain types of data processing that are likely to result in a high risk to individuals’ rights and freedoms. This can help identify and mitigate potential risks associated with workplace surveillance.
6. Employee Rights
   Employees have the right to access their personal data held by the employer and request corrections if necessary. They also have the right to object to certain types of processing, including surveillance, in certain circumstances.
7. Record Keeping
   Employers should maintain records of their surveillance activities to demonstrate compliance with data protection laws.

Key take-away for employers

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.

This update contains general information only and does not constitute legal or other professional advice.

1 Andrew Fennell, StandOut CV Employee Monitoring Statistics: How much do bosses know? (standout-cv.com)

2 Andrew Fennell, StandOut CV – Employee Monitoring Statistics: How much do bosses know? (standout-cv.com)