The opportunity many employers have afforded employees since the pandemic to work flexibly in a hybrid working pattern, both at home and in the office, has been welcomed with open arms by employees.
The benefits for employees are there for all to see – from cost saving on daily commutes to the ability for parents to do the school run in the morning and afternoon – working from home in the main has got a big thumbs up. For employers however working from home has come with a few challenges, one of which is the worry that employees are ‘slacking off’ while at home.
Managing employee productivity is an ongoing issue that employers struggle with. This issue will be compounded over the next few months, as the summer season commences, with 45% of employees admitting to being less productive during the summer. This is likely to be even more prevalent when employees are at home, especially this year given the number of high-profile sporting events taking place like the EURO 2024 Championship, Wimbledon and the Olympics.
While monitoring employees’ productivity in the office is relatively easy, it becomes much harder when they’re working from home – so what can employers do in order to stay abreast of employees’ productivity at home?
Monitoring employees by tracking their computer usage for example might sound like a good way to do this, but it requires employers to process each employee’s personal data, which engages data protection laws, particularly the UK General Data Protection Regulations (UK GDPR). When considering whether to monitor employees, employers must do so in the least invasive way possible to balance the employer’s legitimate interests and necessity for monitoring against the interest, rights, and freedom of the employees.
In the UK, under GDPR, the ability to monitor employees is guided by the lawful basis to do so and the seven principles which employers must adhere to. A lawful basis would be established when:
- employees give explicit consent, irrespective of a contract of employment, which may be withdrawn at any time without detriment;
- it is necessary for the fulfilment of a contract (which cannot be for the purpose of internal business improvement);
- there is a legal obligation to comply with the law;
- there are vital interests to protect someone’s life;
- it is necessary for you to perform a task in the public interest or for the employer’s official function; or
- there are legitimate interests – which is the most commonly-used basis.
In addition to establishing a lawful basis to monitor an employee’s computer usage, an employer must also adhere to the seven principles, which are:
- Lawfulness, fairness and transparency
- Purpose limitation
- Data minimisation
- Accuracy
- Storage limitation
- Integrity and confidentiality (security)
- Accountability
If all of the above criteria are met, then employers could in theory proceed with monitoring employees at home, however if a monitoring system is implemented to assess whether employees are completing the work required, employers may not use the collected data for a reason other than to monitor the work completed.
This is backed up by the European Court of Human Rights which ruled that no policy can reduce an employee’s private social life in the workplace to zero. Therefore, even though employers may implement policies discouraging the use of personal accounts on work technology, monitoring which goes beyond reviewing whether employees are carrying out their work may infringe an employee’s Article 8 right (under the European Convention of Human Rights).
Due to both the legal and ethical issues that employers may face if they do monitor an employee’s work laptop at home, invasive monitoring in most instances will not be appropriate unless a sufficiently serious issue has been identified and the employer can demonstrate that they have tried less invasive methods to deal with the issue and these have not proven to be effective.
So, what other, more easily implementable options are available to employers to ensure employees are still working hard when at home over the summer months?
- Regular catch ups – line managers should have regular catch ups with employees when they’re working at home via online meeting platforms such as Teams, in order to see how employees are getting on with their workload.
- Status reports – line managers can implement status reports, whereby employees have to update a report of where they are up to with certain tasks they are working on.
- Monitor whether deadlines are being met – line managers should be abreast of all deadlines their employees are working towards, and measure whether these deliverables are being achieved in the timeframes set.
- Check to see they’re online throughout the day – with the implementation of systems like Teams, it is now possible to see when employees are online, or if they’re not, when they were last online. This will allow line managers to see if their employees are at their laptop or not.
Employers may also wish, as we come into the peak of summer, to remind their employees of what is expected of them when they work from home, and that it is important that they do not allow their productivity to slip at this time of year.
Overall, while employers may be intrigued to know exactly how employees are using their time at home when working, there is significant legislation protecting employees from this overly invasive approach. Those alternatives suggested above, along with a degree of trust for employees, should help ensure employers are confident that their employees are working to their full potential when at home over the summer months.
This article was co-authored by Drew Wilson, trainee solicitor at Gateley Legal.