ICO consults on employee monitoring

As part of its work to update the 2011 Employment Practices Code, the ICO has issued draft guidance on monitoring workers.

The ICO makes clear that employee monitoring is possible within data protection law. Any decision to monitor workers should involve a careful balancing between the business interests of an employer and the workforce’s rights and freedoms in relation to their personal data, the ICO says.

While legitimate interest grounds can often be relied on, companies should avoid this ‘if they are monitoring in ways workers do not understand and would not reasonably expect, or if it is likely some workers would object if you explained it to them.’

In recent years, the working environment has changed considerably due to technology, employment relationships, data protection law and the pandemic. According to the ICO, a 2020 survey commissioned by YouGov suggests that 12% of all firms (16% of larger firms) that have employees working remotely have implemented online software to track employees and monitor productivity.

It is noteworthy that workers’ expectations of privacy are likely to be higher at home than in the workplace. The risks of capturing family and private life information are higher, and for example, keystroke monitoring is classed as behavioural biometric data where a worker is identifiable because of their unique manner and rhythm of typing.

The ICO will consult separately on the other parts of the Code. This 54-page draft guidance with several helpful checklists is open for comment until 11 January 2023.