Tegan Osborne-Brown
Posted on 9 Nov 2021

Data protection and employers' use of technology: calls for greater regulation

In August, the Information Commissioner's Office (ICO) called for views to assist in forming its new data protection and employment practices guidelines. The purpose of this information collecting exercise was to help employers and staff comply with data protection legislation. With the simultaneous growth of flexible working, artificial intelligence and data protection legislation and guidance, a key question has come to the fore; do we need to see action to strengthen the regulation of employers' use of technology in monitoring staff working patterns and productivity?

How does data protection legislation impact the employer/employee relationship?

Data protection legislation, which is aimed to protect individuals from the misuse of information, has an impact on most Human Resources activities, spanning recruitment to references. It is applicable to the storage and processing of staff information including, but not limited to, addresses, correspondence and bank details.

It is a complex and nuanced area of the law, and its application can change depending on the situation. The legislation requires employers to develop detailed policies and contracts that clearly set out how, when and where personal data will be processed and stored.

What is flexible working?

For a detailed review of flexible working, please visit our recent article Flexible Working: Government Consultation into making Flexible Working a Day One Right | Michelmores.

In short, 'remote working', 'working from home' and 'agile working' are no doubt terms and practices most of us have experienced at some point over the past few years. With the aid of technology, staff can easily work flexibly in terms of location, time or day. However, the trade union Prospect has recently called for greater regulation of employers' use of this same technology to monitor its employees.

Current data protection concerns relating to employers' use of technology

A new poll of 2,424 UK workers by Opinium has suggested that nearly 32% of employees working from home are being monitored, with this figure rising to 48% for those aged 18 to 34. Monitoring by camera has more than doubled since April 2021, from 5% to 13%. As a result, Mike Clancy (Prospect General Secretary) has commented that 'new technology allows employers to have a constant window into their employees' homes, and the use of the technology is largely unregulated by government'. Labour shadow digital minister Chi Onwurah heeds this concern and has agreed that 'ministers must urgently provide better regulatory oversight of online surveillance software to ensure people have the right to privacy, whether in their workplace or home.'

The ICO has suggested that employers should consider less intrusive alternatives such as catch-up calls or email correspondence, whilst Prospect takes a stronger line and has called for a strengthening in regulation and for the monitoring of employees by webcam to be made illegal, except during calls and meetings.

What impact does this recent conversation have for employers?

There is a clear business need for monitoring the productivity of employees, particularly with flexible working reducing the number of physical interactions in office working. However, there is a fine line to tread and employers must still ensure that any data processed, collected or stored by them or third parties is done so lawfully.

With data protection spanning most levels of business it is pertinent to keep abreast of the outcome of the ICO's call for information and any new employment practice guidelines that are released as a result.

Where data protection risk presents itself, employers may wish to seek legal advice to ensure any action is within the nuanced and strict parameters of the legislation.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.