The remote working employee rights crisis

Businesses should be mindful of technology’s repercussions, writes Susie Al-Qassab, partner at law firm Hodge, Jones & Allen

The ‘virtual office’ has been crucial in the rapid evolution of remote and hybrid working. However, counterintuitively, remote-working platforms like Microsoft Teams have exacerbated the challenges of managing office productivity.

Managers feel out of control. Colleagues are resentful, acutely in-tune to who is and isn’t pulling their weight. Teamwork has been eroded, with businesses preoccupied by fears of data security and confidentiality breaches.

At its most basic, management involves counting who’s in the room and when – physically looking over someone’s shoulder. At its most effective, it hinges on the subtlety of a manager’s personal judgement. How do businesses virtually simulate this organic interaction without seeming over-bearing?

Furthermore, the simulation falters both ways. A recent poll of 2,000 full-time employees by Kaspersky found that, of those with monitoring software installed, 46% of remote workers admitted to staying logged in longer than necessary.

What technological developments have we seen?

  • Virtual to-do lists, seen on Microsoft Teams, allow workers to manage tasks and deadlines collaboratively.
  • Online timesheets provide a written log of what work has been completed when.
  • Monitoring software tracks everything from keystrokes to file transfers, and can even send periodic screenshots to managers.
  • Unique-IQ allows users to view their team’s last known location on a map, using the GPS snapshot taken as they clock in/out. A ‘Tasks’ setting prevents an employee from clocking out before a particular task is completed.
  • A new ‘Praise’ app being developed for Microsoft Teams will allow employees to exchange congratulations for tasks well done. It will also provide users with a log of all the praise they receive/give.

But these developments risk encroaching on legal protections for employees at work:

  • The implied duty of trust and confidence, which in cases of serious breach leads to formal grievances and constructive dismissal.
  • Employees have a right to privacy, even when they are at work (Article 8 Human Rights Act 1998).
  • Under the GDPR 2016/Data Protection Act 2018, an employer must have a legal basis to process employees’ personal data.
  • Employers’ right to carry our surveillance and investigation of IT systems are subject to strict statutory regulation, including the Regulation of Investigatory Powers Act 2000.

How should employers balance their need to manage against their employees’ right to privacy?

Don’t monitor for monitoring’s sake

Be outcomes-focused, with clearly identified goals. Often concerns are perceived and not real. Autonomy directly supports employee motivation, whilst distrust damages morale and productivity. If staff are given clear KPIs, especially if those KPIs are achieved, is monitoring of productivity levels necessary?

Don’t use a sledge-hammer to crack a nut

Address issues in a proportionate way. The law expects that this is as unintrusive as possible. If you wouldn’t check screens every five minutes in-person, it is hard to justify this while working remotely. Monitor behaviours that are traditionally red flags: working unusually late or downloading large amounts of company data, for example.

Ask if compelling functions like location tracking are necessary. These tools are among the hardest to justify, legally and ethically. If employers want to be able to use this data to monitor performance this must be spelt out clearly to staff.

Communicate and consult

An IT Acceptable Use and Monitoring Policy communicates to staff what is expected of them. It provides clear rules, justifies a business’ monitoring activity and – importantly – how this data will be used. Consult with staff at an early stage to develop systems and create a healthy dialogue. Maintain this by keeping systems under review with regular feedback.

Instant messaging can be a positive tool for teamwork and idea sharing. However, ‘take a break’ functions must be implemented and encouraged.

Set clear boundaries

Technology makes separation of work and home possible. Even when using their own devices, employees can work off a separate remote network. But there should be clear rules about what employees do when online, to protect both themselves and the business. Employers must also respect the right to disconnect.

Check for data protection compliance

A Data Protection Impact Assessment ensures that any measures put in place are legally compliant, and shares this with employees via a privacy notice. Keep a good record of this.

Rules around access and retention should also be addressed. The Information Commissioner’s Office (ICO) has published a helpful Code setting out good practice for implementing a monitoring regime.

Technology is not a replacement for human interaction 

Some things shouldn’t require an app, like telling someone they have done a good job. The ability to quantify praise encourages employees to measure self-worth by the number of likes received. Businesses should be mindful of technology’s repercussions. With seemingly limitless technological advances at our fingertips, we must pause to ask what kind of remote-working culture we really want.  

Avatar

Natalie Kenway

Natalie is editor in chief at MA Financial covering ESG Clarity, Portfolio Adviser and International Adviser. She was previously global head of ESG insight for ESG Clarity and has been an investment journalist...