Privacy v Productivity: Working from home

Article by Elizabeth Adeogun

As we have found due to the coronavirus pandemic, remote work can be an effective means of encouraging improved worker performance and help prevent the spread of illness, helping companies avoid lost productivity and protecting public health. It looks like in a lot of areas, remote working is here to stay.

In the past, many employers believed their employees would be too easily distracted at home, where managers couldn’t keep an eye on their work. This sentiment has remained prevalent in the minds of corporations and has arguably manifested itself in the managing of the office workforce from home. We can see this through the ever-increasing number of employee monitoring tools readily available for companies to track worker activity. There are programmes with features including website monitoring, video surveillance and keystroke logging, all with the goals of keeping the ‘higher ups’ informed and reenforcing productivity.

Perhaps these techniques are being used allay managers’ fears. Managers are mantled with task of safeguarding staff, protecting and accounting for resources and improving productivity. These duties and obligations do not disappear because of a change from public to private work setting. Therefore, employers and managers may worry that practices put in place to meet their duties and obligations are no longer being implemented.

BBC news coverage has shed light on numerous employer practices intended to monitor staff productivity. Workplace monitoring is not a new phenomenon, it is a recognised aspect of employment, however are employers breaching laws using powerful data analysis during the process of the shift in the workplace setting from public to private and the lengths ‘necessary’ to monitor?

Is this legal?

All the aforementioned monitoring practices fall under the scope of the Data Protection Act 2018 (DPA 2018). This means they are all subject to safeguarding practices for the benefit of the employee. These practices are to be considered legal only when implemented with additional safeguarding practices, such as notice. It can be argued, however, that working from home was not in contemplation when the DPA 2018 was drafted. Therefore, there is still room to argue legality of monitoring employees from home whilst working even after safeguarding has been met.

It seems as though the European Court of Human Rights’ (ECtHR) case law casts doubt over the compatibility of monitoring with Article 8 of the Convention in the work from home environment where the potential psychological harm of monitoring is such that any test of proportionality has to be very strictly applied. (Chappell and Niemietz.) This application would make the courts less likely to favour monitoring practices. In the wake of Brexit, our national courts and tribunals must give an appropriate consideration to Chappell and Niemietz in order for us to take guidance on how these may apply in the UK. Where needed, these, along with another Bărbulescu and López Ribalda should be applied to reach the right balance between the employer’s interest in supervising employees and the employees’ right to privacy. In following the principles stemming from these rulings, employers can be justified by concerns over employee productivity or supervision.

Everyone has the right to work, to free choice of employment, and to just and favourable conditions of work. Now that working from home is becoming the new normal, questions have popped up surrounding the employer-employee relationship and work place culture. Has the working culture of the UK always fostered intrusive monitoring practices? And do they, in the long term provide more of a practical benefit to the employer than less intrusive means? And furthermore, could there be an argument as to whether monitoring is a justified limitation of the employees’ reasonable expectation of privacy within their own homes?