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In August 2021, the Information Commissioner issued a Call for Views on Employment Practices, seeking to inform its updated guidance which it proposed would address issues including monitoring at work.
The prevalence of workplace monitoring is reported to be on the rise, particularly since the COVID-19 pandemic and the consequent increase in remote working and home working. Research conducted by the Trades Unions Congress (TUC) revealed that 24% of workers reported monitoring of their devices in 2021, with a further 14% reporting that calls were monitored, and a total of 60% of workers reporting some form of workplace monitoring or surveillance in the workplace.
Further to its Call for Views, in October 2022 the Information Commissioner’s Office published a consultation on its draft ‘Employment practices: monitoring at work’ guidance. That consultation closed on 20 January 2023.
While the draft guidance addresses some of the more commonly used methods of surveillance and monitoring in the workplace, such as trackers, dashcams, and video and audio monitoring, we would welcome other technologies that are currently available on the market being addressed in the guidance, including screen recording, screenshots and photo check-ins. We would also welcome a clearer exposition of the ICO’s position as to the installation of monitoring software on personal devices under Bring Your Own Device (BYOD) policies.
Handley Gill has submitted its response to the Information Commissioner’s consultation, which may be downloaded below. While we welcome the guidance, we consider that greater clarity as to the additional requirements on data controllers to meet the threshold for explicit consent, consistent with the ICO’s existing guidance, would be of assistance to avoid creating confusion. Consistency throughout the guidance as to the ICO’s position on the consultation requirements when conducting a DPIA would also serve to support data controllers. We would also invite the ICO to be clearer, including in the given examples, as to how it considers the requirement of necessity interacts with reliance on the lawful basis of consent in the context of the employer-employee relationship where there is a need to offer employees an alternative to biometric processing and less intrusive processing is therefore available. Finally, we would support the inclusion in the guidance of a more detailed explanation of the ICO’s position on how the rights of third parties in the remote working and/or home working environments, who could include children, should be addressed and how it expects them to be protected.
Handley Gill has previously held a webinar, which may be accessed on demand, addressing the compliant deployment of employee monitoring and surveillance technologies in the workplace.
Should you require support in assessing the lawfulness of employee monitoring and surveillance technologies in the workplace, or their compliant implementation, please contact us. Our consultants can provide support in identifying an appropriate lawful basis for processing, conducting legitimate interests assessments, data protection impact assessments (DPIAs), consultations with data subjects, international data transfer impact assessments (TIAs), and the preparation and negotiation of data processing agreements.