A recent report from the TUC highlighted employees’ fears of being monitored at work. But surely employers have a right to expect a fair day’s work for a fair day’s pay? It is a complex and emotive issue – and as technology evolves it is not going the get any simpler, either for employers or employees.

By Mark Richards.

It is Monday morning – so what better way to start the week than with a nice, complicated ruling from the European Court of Human Rights?

But bear with me. This is not one of my more witty or light-hearted blog posts, but the subject is important. Probably more than important.

Back in 2007 a Romanian man, Bogdan Mihai Barbulescu, was sacked for sending private messages at work. He’d used the Yahoo messaging service and some of the messages – sent to his fiancée – were ‘intimate in nature.’ But while he’d been using Yahoo his employer had been using surveillance equipment and, having read the messages, duly sacked him. In 2016 a Romanian court ruled that the employer was within its rights to sack Mr Barbulescu – a ruling any employers reading this would probably have some sympathy with.

Mr Barbulescu challenged the decision, and last year the ECHR overturned the ruling of the Romanian court, stating that Mr Barbulescu’s privacy had not been ‘adequately protected,’ and that it was not clear that he had been warned his communications would be monitored, or that there was a good reason for the surveillance.

This is the European Court of Human Rights: there is no higher court so there is no further appeal – and if the UK enshrines this particular piece of law after Brexit, then it will apply in the UK.

Being monitored at work

So a recent survey from the TUC suggesting that more than half – 56% – of British workers believe they are monitored by their employer at work is especially relevant.

The monitoring could be something as simple as timing lunch or toilet breaks, or it could be a more sophisticated use of modern technology, such as monitoring internet usage or tracking someone’s location.

The TUC said that workers feared monitoring was being used to set unrealistic targets and “take away autonomy,” with TUC General Secretary Frances O’ Grady warning that too much monitoring threatens to “undermine workplace morale.”

She added, “Monitoring toilet breaks, tracking every movement and snooping on staff outside working hours creates fear and distrust. New technologies should not be used to whittle away our right to privacy when we are at work. Employers should discuss and agree on workplace monitoring policies with their employees – not impose them.”

What do employees worry about most?

The article on the BBC site highlighting the employees’ worries showed that facial recognition software and ‘mood monitoring’ was the number one dislike of employees, with 76% of those surveyed against it. Monitoring social media accounts outside work came next, with 69% against, followed by recording someone’s location (67%) and monitoring keyboard strokes (57%).

The problem is that once it has been used it is very difficult to ‘un-use’ the technology. And while many of us may not want to see it employed in our workplace, when we are consumers we might well view it differently. Vehicle tracking is a good example: obviously, it allows precise and accurate tracking of anyone who uses a company vehicle. As a customer, I really appreciate knowing where my Amazon delivery driver is: but as the driver, I would feel very uneasy knowing that my employer could monitor exactly how long I was parked in the lay-by eating my lunch.

What about the employers?

Is Your Boss Spying on You?

Let us turn it around a moment and look at it from the employer’s point of view – especially in the case of our good friend, Mr Barbulescu. He was supposed to be working: instead, he was using his employer’s time and equipment to send ‘intimate messages’ to his fiancée. (But it is eleven years ago now – don’t you just know that married life will have toned the messages down a bit? Don’t forget the dog food and if you’re going into town we need dishcloths.)

The vast majority of employers will not see anything wrong with workplace surveillance. Their attitude will be: ‘Why not? My staff want 100% of their pay: I want 100% of their attention while they are re at work. Send whatever message you like on your own phone in your own time, but when you are working, you are working.’

After all, a recent study found that 10m of us shop online when we should be working: a staggering 125m working days are lost each year to online shopping and browsing. And do not think it only happens on a Friday afternoon when the week’s work is done: peak time for online shopping is 11 am on Monday.

It is no longer that simple

The problem is, communication and monitoring is no longer as simple as that. As the ECHR said, it is virtually impossible to reduce someone’s private life to zero, be it social or family. Clearly, staff should not be swiping left or right on Tinder while they are at work, but what does an employer do about a mother receiving a text from school to say her daughter is ill?

Another potential problem is the increase in apps like WhatsApp and Facebook Messenger. There are more and more ways in which you can communicate with clients and customers and that inevitably blurs the boundaries between personal and professional communication. Even with my relatively limited number of clients and potential clients, I communicate business messages via e-mail, Facebook groups, Facebook messenger, text messages and Slack.

Given that – for all of us – much of this communication takes place on a mobile phone it gets ever more complex. Are all the messages on your phone your property? Supposing some of them relate directly to work? ‘Grey area’ does not even come close.

Everyone needs a policy

Whether you look at it from an employer’s point of view or from an employee’s, it is quite clear that all workplaces now need a clear policy on what is and is not allowed. If an employer is monitoring communications, then employees must know it is being done, and there must be a good reason for the monitoring. Ideally, such a policy would be drawn up between employers and employees, instead of being rigidly imposed. The technology is not going away: everyone needs the protection of a company policy.