Partner Nicola McKinney comments in Compliance Week on the ICO’s guidance on employee monitoring

Partner Nicola McKinney examines the ICO’s draft guidance aiming to prevent employers’ monitoring of staff performance from crossing into surveillance or harassment.

Nicola’s comments were published in Compliance Week, 19 October 2022, and can be read here.

“As far as it goes, this guidance from the ICO is a user-friendly document, that gives employers useful practical examples of how to balance the numerous legal considerations – data protection regulations, human rights and privacy laws, and potential discrimination considerations – that employee monitoring raises.

Its limitations however, are in failing to give real solutions, or to cover at all, some of the trickier scenarios that employers are now facing or are likely to face in the next few years. In particular, the use of personal devices for work communications, or work devices for personal communications, raises very difficult questions of monitoring or control for employers.

This is clear in the wake of recent $2 billion SEC fines in the US against banks relating to employee use of messaging apps like WhatsApp and, closer to home, the FCA issuing questions to the big banks on the same issue. The difficulties raised by using routine camera and surveillance monitoring are set out; but not considered against the need to discover when non-authorised devices are being used. Questions remain regarding how employers can really tackle this risk.

Home working raises its own specific challenges when it comes to monitoring. For most employers, simply flagging that there is a greater expectation of privacy at home which they should factor in, is unlikely to help decide what kind of monitoring is suitable and in which circumstances. With companies such as Meta pushing its metaverse as a forum for internal and external work meetings, questions around how employers should adapt their policies to be fit for purpose will continue to be asked.

This is clearly intended to be a document for employers, rather than employees. The scenario and checklist-based presentation suggests that the ICO wants to provide employers with a go-to reference guide, and that simply referring them to the legal tests was resulting in employers getting the balancing exercise wrong. But this guidance will, for many sectors and employers, quickly be out of date.”