Employee monitoring to measure productivity is not a new development – Japan’s Keihin Electric Express Railway Company started using technology in 2009 to monitor its staff. However, the explosion in remote working due to the pandemic has accelerated the uptake of digital surveillance by employers.
Lockdowns may be over (for now), but many companies have allowed staff to continue to work remotely. However, the physical distance from the office appears to be the source of some anxiety among employers about how productive their workforce is when working remotely.
Employer paranoia will no doubt have been further fuelled by Prime Minister Boris Johnson’s recent comments that home working is an excuse to do little other than eat chunks of cheese from the fridge.
Perhaps not surprisingly, demand for remote employee monitoring software has soared in the past two years. One in three of the 2,400 workers polled by union Prospect reported being monitored at work in October 2021, up from a quarter in April 2021. In reality, it’s likely that use of these technologies is far more widespread than research suggests.
Meanwhile, a TUC report published in November 2020, Technology managing people, found that one in five companies have admitted to implementing or planning to introduce “secret software used to spy on staff”.
The spread of online surveillance is worrying some, not least employees and their representatives. Because this type of AI-powered technology is so new, widespread knowledge of how it operates, and what its impact is, is not well known.
Monitoring software can track employee hours online, website visits and even their keystrokes. Some software can take screenshots of an employee’s computer and access their webcam, allowing bosses to check they are at their desk during the day. The sophistication of monitoring software means that employers can assess if an employee has been productive or not, based on analytical data on behaviours and biometrics.
Paul Kelly, head of Employment law at Blacks Solicitors, says: “Workplace monitoring is legal in the UK and employers may have many legitimate reasons for the monitoring and surveillance of staff – for example, to prevent theft, compliance with health and safety regulations, etc – but there are certain criteria an employer must meet in order to monitor staff lawfully.”
Any employee monitoring must have a clear purpose, be proportionate and not overly excessive, and respect the employee’s private life and their right to privacy, Kelly says. Critically, he says, the employer must have a formal policy that informs staff that they are being monitored, how that monitoring will be conducted, and how any data gathered will be used and/or stored.
In the UK, there is no specific law governing workplace monitoring of employees. Instead, there is a patchwork of legislation that employers must be mindful of, including the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping purposes) Regulations 2018, the Data Protection Act 2018 and the Human Rights Act 1998.
James Tamm, Director of Legal Services at employment law and HR support firm WorkNest, says: “While employers are legally allowed to monitor employees’ work emails, employers must be reminded to remain compliant with the Data Protection Act and consider the right to privacy under human rights laws. Transparency is essential.”
Tamm recommends explicitly stating in the employee’s employment contract or employee handbook what they can and can’t do in terms of monitoring and the “consequences of any violations so that employees understand the scope of the monitoring”. He also suggests consulting with employees before enforcing online monitoring.
But even if employers are clear in laying out their reasons for digital monitoring the general feeling is that it will negatively affect staff because it doesn’t engender trust and could damage employee engagement.
Kelly says: “In the new age of hybrid working, employers need to look at how they can harness the benefits of home working to increase productivity and build trust with their remote staff rather than take the regressive and draconian step of micromanagement and intrusive spying. Employers who fail to adopt the carrot as opposed to the stick in the post-Great Resignation landscape will quickly find that they will lose the war for talent.”
Monitoring may have a long precedent, but that doesn’t necessarily make it an effective way to manage people, the CIPD says in its guide Employee monitoring: what’s acceptable. “There is evidence that in the context of virtual or remote teams, behaviour control is even more likely to undermine trust than it is in face-to-face teams,” it says.
“Just because software gives you the capability to measure something, it doesn’t mean you should. For example, it’s hard to imagine many jobs for which a manager can see how well a worker is performing from monitoring the number of keystrokes (unless you are a typist, perhaps). It is often easier to measure inputs accurately, but they can be spurious and misleading. It’s far more useful to focus on outputs or deliverables,” the CIPD guidance continues.
While new AI technologies can offer significant benefits to society and people, employers shouldn’t adopt technology for technology’s sake, especially when it is used for unconstructive reasons, rather than to improve the lives of companies and staff.
Current leadership styles are evolving to focus on outputs, not inputs, so it seems counterintuitive to encourage focus on inputs and presenteeism at a time of a severe skills and staff shortage and seemingly greater inclusion. This will send the wrong message to staff and paint an unfavourable picture of employers.
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