Surge in workplace monitoring prompts new ICO guidelines on employee privacy

The Information Commissioner's Office (ICO) has issued fresh guidance urging organizations to “consider workers’ rights” when introducing workplace monitoring tools. 

The advisory follows a report that found 70% of the public would find workplace monitoring practices “intrusive”. Almost one-in-five (19%) of respondents told the ICO they believe they have been monitored by an employer at some stage. 

The watchdog warned that excessive monitoring can “easily intrude into people’s private lives” and undermine privacy. 

“With the rise of remote working and developments in the technology available, many employers are looking to carry out checks on workers,” the ICO said in a statement.  

“The ICO has today published guidance to help employers fully comply with data protection law if they wish to monitor their workers.” 

The guidance is aimed at employers spanning both the public and private sector, and provides a “clear direction” on how organizations can implement monitoring techniques in a fair and lawful manner. 

Monitoring can include tracking calls, messages and keystrokes, webcam footage or audio recordings, or using “specialist monitoring software” to track worker activity, the ICO said. 

In addition, the advisory outlines best practice techniques for employers to help “build trust with their workers and respect their rights to privacy”. 

This includes informing staff about monitoring practices in a “way that is easy to understand” and ensuring workers are made fully aware of the “nature, extent, and reasons for monitoring”. 

The guidance also warns that organizations must have a “lawful basis” for processing workers data - such as consent or legal obligation. 

This includes the need for data protection impact assessments, which must be conducted for any monitoring practices that are “likely to result in a high risk” to workers’ rights.

Transparency in workplace monitoring

Emily Keaney, deputy commissioner for regulator policy at the ICO said that while data protection laws permit monitoring, organizations must prioritize privacy and the potential impact on workers.  

“As the data protection regulator, we want to remind organizations that business interests must never be prioritized over the privacy of their workers,” she said. 

“Transparency and fairness are key to building trust and it is crucial that organizations get this right from the start to create a positive environment where workers feel comfortable and respected."

Ella Bond, senior employment solicitor at Harper James, commended the publication of the guidance, and echoed Keaney’s comments on transparency.  

Organizations that fail to communicate with staff could risk harming relationships with their workforce and impact performance and morale.  

“It is crucial for employers to strike a balance between managing productivity and performance whilst respecting workers' privacy,” said Bond. “Workers have a legitimate expectation of privacy, even in the course of carrying out their duties.” 

“Monitoring should only be undertaken when it is necessary and proportionate, and it should be conducted in a way that respects workers' rights and freedoms. It is essential that employers communicate clearly with their staff about the nature, extent, and reasons for any monitoring activities. 

“Employers should have clear signage, procedures and policy documentation in place in order to help them to achieve this.”

Workplace monitoring practices have increased significantly since the onset of the COVID pandemic in 2020 and the subsequent shift to remote and hybrid working practices as employers sought to keep tabs on employee activities.  

A 2021 survey conducted by Prospect recorded a sharp rise in cases of webcam and video-based monitoring practices among employers.  

At the time, a majority (52%) of employees polled by the firm said they believe monitoring practices should be banned outright, while 28% said more robust regulation of the trend was required.