Understanding the role of Big Brother in the workplace and your rights

Depending on who you listen to everything we now do is being tracked and monitored, but what if it happens at work?

Mobile phones, smart TVs, virtual personal assistants, CCTV and ANPR cameras can all gather different information on what we do, look at and say in the comfort of our own homes…and also where we walk and drive when we step out of the front door.

You could be forgiven for scratching your head and questioning how much personal privacy you really have nowadays.

So considering how much time you spend at work, how much do you really know about the lengths your boss can go to in order to keep an eye on what you are up to?

We have previously heard about a US firm planning to microchip employees [1 cited 27.2.23]. And also seen reports of Amazon patenting a wristband to track warehouse workers [2 cited 27.2.23]

The idea of Big Brother-style surveillance tracking your every move at work, is one that will make many feel uncomfortable.

Your employer can monitor you, to some extent but there are certain legal limitations as to how far it can go.

It is a matter that recently made headline news when a Royal Mail boss was hauled in front of a committee of MPs to explain the way in which it had reportedly been tracking the productivity of some postal workers [3 cited 27.2.23]

Each postal worker carries a postal digital assistant (PDA) and it was said that in some cases data from the device was being used to pressure staff to work faster.

Simon Thompson, chief executive of Royal Mail, appeared before the business select committee and was told it had received evidence “…that showed tracking information from PDAs was ‘100% being used’ to discipline and performance-manage staff.”

Mr Thompson is reported to have told MPs it was a very clear breach of Royal Mail policy and the agreement with the Communication Workers Union.

We have heard more in recent years, certainly following the pandemic and dramatic increase in the number of people working from home, about employers using time-tracking software to monitor productivity.

The software was at the centre of a recent case in which a Canadian accountant was ordered to pay damages to her former boss for ‘time theft’ after an electronic employee monitoring program revealed a discrepancy in her time logs [4 cited 27.2.23]

ACAS covers England, Wales and Scotland and its advice on the use of any monitoring software, is that an employer should consult with employees and any representatives and agree and create a clear policy together before introducing it  [5 cited 27.2.23]

Employees should be informed about any work-related monitoring arrangement and the reason for it, except in extremely limited circumstances.

Here we take a closer look at workplace tracking and monitoring.

Can my employer track my productivity?

Yes, and there are several ways in which this can be done, such as:

• Time and attendance systems: Can be utilised to track your daily working hours including start and finish times.

• Performance: This can be done through a performance measurement system or targets, which can be used to track how well you are performing your required duties.

• Key performance indicators (KPIs): Can be used to determine your productivity against particular business goals.

• Monitoring software: Your employer can make use of it to track your activity on company-owned devices or networks e.g. the amount of time you have spent on particular tasks or applications.

The fact any work-related activity you do is being tracked should not come as a surprise to you, as you should be informed in advance that it is taking place.

The tracking must be for reasons that are legitimate, proportionate and necessary.

What work activity can my employer monitor?

There are legal and ethical limitations regarding this. Similar to tracking, your employer must inform you of any monitoring activities it carries out.

An employer can monitor the following:

• Emails: That you send and receive on any devices or accounts owned by your employer.

• Internet usage: Websites you visit when using company-owned devices or networks.

• Phone calls: Made on devices owned by your employer.

• CCTV: There must be a valid reason for using it and you should be informed about the purpose and cameras.

Your employer must explain the extent of any monitoring clearly in the staff handbook or contract of employment.

The level of any monitoring must be proportionate and necessary for the legitimate aim your employer is pursuing.

What laws cover my employer wanting to track and monitor me?

There are several laws and regulations, including:

• The Data Protection Act 2018 [6 cited 27.2.23] : Provide rules regarding the processing of personal data, incl uding that which is collected through monitoring and tracking activities.

Your employer must comply with the principles of data protection when monitoring and tracking work activity, and ensure any data collected is processed fairly, lawfully, and transparently.

• The General Data Protection Regulation (GDPR) [7 cited 27.2.23] : Establishes the rules for the processing of personal data across the EU, which includes in the UK. When your employers processes personal data through monitoring and tracking activities it must comply with GDPR.

• The Human Rights Act 1998 [8 cited 27.2.23] : Includes your right to privacy. Your employer must ensure any monitoring and tracking activities it carries out do not unduly infringe on your right to privacy.

• The Regulation of Investigatory Powers Act 2000 (RIPA)[9 cited 27.2.23] : Is the law covering the interception of communications and other surveillance activities. Employers must comply with RIPA when monitoring and tracking employee communications, such as emails and phone calls.

There are other codes of practice and guidance produced by regulatory bodies. For example, the Information Commissioner's Office (ICO) provides advice on how your employer should comply with the various laws and regulations governing the monitoring and tracking of employees.

I think my employer is secretly tracking me, but is it allowed to do that?

Your employer is generally not allowed to secretly monitor you. There are, however, limited circumstances in which it can be justified.

If for any legitimate reason your employer suspects you are involved  in criminal activity, such as theft or fraud, it may be able to conduct covert monitoring as part of an investigation.

But even in these circumstances, the clandestine gathering of information must be necessary, proportionate, and only used for the specific purpose of the investigation.

An established policy should be in place regarding the use of covert monitoring and it must also comply with relevant legislation and regulations.

Can my employer monitor me everywhere at work?

Your employer must explain the amount of monitoring clearly in the staff handbook or contract of employment.

Cameras should not be installed in a private area of a workplace where people expect complete privacy. This includes toilets and changing rooms.

If your employer does not respect this it could be in breach of the Data Protection Act.

I’m not comfortable with being monitored and tracked so can I object?

Yes, and if you wish to do so it must be done in accordance with your employer’s policies and procedures.

Be clear about the reasons why you object and be prepared to discuss and fully explain them to your employer.

Your objection should be reasonably considered as should any alternatives to monitoring, which would achieve the same objectives.

If after contemplating the matter it is decided there are no reasonable alternatives and monitoring or tracking is necessary, you may be required to comply to it as a condition of your employment.

If you genuinely believe the way in which you are being tracked or monitored at work is unfair or unreasonable, or in breach of any legal requirements, you may be able to make a complaint to the relevant governing body or take legal action against your employer.