Employee monitoring and data protection are closely intertwined, particularly in a work environment where hybrid and remote arrangements are now the norm.
From tracking company device activity to reviewing emails, many of these practices involve processing personal data, triggering strict compliance duties under UK GDPR and employment law. Get it wrong, and you could face not only regulatory penalties but also grievances, claims and reputational damage.
Our data protection solicitors and employment law solicitors can help you review or implement monitoring practices that strike a balance between business needs and your legal obligations, ensuring your systems are proportionate, transparent, and legally sound.
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Are you monitoring staff?
As a key first step, it’s essential to recognise if you’re monitoring staff, as many activities could fall under this. Monitoring covers a broad range of activities (from monitoring work emails to recording calls and tracking staff activities). It’s vital to know that even activities you feel are standard don’t mean you’re off the hook for complying with legal rules. Monitoring gives rise to stringent requirements and considerations, so it’s essential to take a step back and understand if any of your business’s practices constitute staff monitoring.
Which rules and principles apply to monitoring staff?
There is no single law that explicitly regulates employee monitoring, but a range of legal frameworks should be considered.
Some of the key rules and general principles include, but are not limited to:
- Article 8 of the European Convention on Human Rights is incorporated into UK law through the Human Rights Act 1998. This law protects an individual's right to respect for their private and family life.
- The Investigatory Powers Act 2016 and the Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-Keeping Purposes) Regulations 2018 outline the rules governing the interception of electronic communications and the prevention of criminal offences.
- Monitoring can also have implications under employment law, for instance, the concept of fairness under the Employment Rights Act 1996 and anti-discrimination laws. A further legal consideration is the implied duty of trust and confidence in employment contracts. Excessive or intrusive monitoring may breach this duty and could lead to employee claims.
- Employee monitoring will virtually always involve handling personal data, in which case the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 apply.
- The Information Commissioner’s Office (ICO) issued guidance to help employers comply with their obligations under UK GDPR and the Data Protection Act 2018 when monitoring employees - it’s vital to review this guidance where you’re engaging in staff monitoring. A key point to note is that the rules do not just apply to ‘employees. These rules apply to all workers. So, you will need to comply with these rules regardless of the type of staff you hire (employees, freelancers, or otherwise).
How can you ensure that your staff monitoring is lawful?
The law doesn’t prohibit you from monitoring, but you must ensure compliance with strict legal rules. There is a range of principles and regulations to follow, and monitoring can be high risk, so you should take legal advice on your specific activities and what you need to do to comply with your legal obligations.
A lot of the rules you’ll need to follow will fall under data protection laws to the extent that monitoring uses personal information.
As an employer, you’ll need a clear and specific purpose for monitoring and using the least intrusive method possible to achieve your objective - it’s also vital to make sure that the monitoring is proportionate. If your monitoring captures ‘special category data’, e.g. health or biometric information, you’ll need to implement additional safeguards to protect staff rights.
Transparency is also key. Your employees must be informed in advance about the monitoring, the reasons for it, and how their data will be used. Covert tracking can only be used in exceptional circumstances; therefore, it is advisable to seek legal advice on the applicable rules.
If you plan to implement high-risk monitoring, you must conduct a Data Protection Impact Assessment (DPIA) beforehand to assess and mitigate the risks to staff. Staff also have the right to access their monitoring data upon request unless a legal exemption applies.
While these are key examples of certain obligations, the ICO’s guidance is highly detailed and provides a strong reference point, enabling employers to identify mandatory duties and best practices.
What are the consequences of non-compliance?
Failing to comply with monitoring laws can have serious consequences. The ICO has the power to issue high fines for breaches if you get data protection wrong. You could face enforcement action, including reprimands, compliance orders, and audits.
The reputational risks of non-compliance can also be severely damaging to your business. If employees feel their privacy has been breached, you could find yourself facing grievances, constructive dismissal claims, or discrimination complaints. It’s therefore vital to get this right, not just for compliance but to keep the trust of your teams.
What are some key considerations for employers?
Staff monitoring gives rise to a host of issues depending on the activities, but here are some key data protection law considerations you need to ask yourself as an employer carrying out monitoring:
- Are you auditing and documenting your monitoring practices? You’ll need to carefully understand and document why and how you monitor employees (particularly when monitoring involves processing their data).
- Are you using the least intrusive method? Make sure you carefully consider alternative, less invasive ways to achieve your objectives.
- Are you informing staff? Your staff need to be informed about the monitoring and its impact on their data – e.g. what data is collected, how long it will be retained, and how it will be used. You can cover this in your staff privacy notice.
- Do you have a lawful basis, and have you documented it? You must justify the monitoring under UK GDPR with a lawful basis for processing. You’ll also need to comply with other key data protection laws – e.g. collecting minimal amounts of data and ensuring you delete it when it’s no longer needed. A data protection lawyer can guide you on the rules to follow.
- Have you assessed the risks? You must complete a DPIA for high-risk monitoring to evaluate and seek to mitigate any risks to the personal data of your teams. Also, remember that certain high-risk monitoring activities (e.g. covert monitoring or monitoring of biometric data) will mean compliance with stricter legal rules.
How can our solicitors help you stay compliant?
Monitoring your workforce requires careful legal and practical judgment. If you don't comply with the full scope of data protection and employment law, you could face severe penalties, from ICO enforcement to employee claims. Our employment law solicitors and data protection solicitors work with employers across a wide range of industries to design compliant monitoring systems, manage DPIAs and draft clear staff communications. If you’re planning to monitor employees or want to audit your current practices, we’re here to help you minimise legal risk and maintain workforce confidence.
