Andrew Wilson, head of our Employment Law Department, has been considering the impact of existing human rights laws relating to privacy in home working arrangements, given our ongoing COVID-19 lockdown situations.
Andrew provides us all with a stark reminder that European human rights laws are still likely to affect us after Brexit!
The tables have turned: from the Board Room to the Dining Room
At the outset of the Coronavirus lockdown thousands of office-based workers were told, “if you can work from home, then stay at home”. Now in October we have the same message, which is likely to remain the constant for some time to come.
The temporary ad hoc measures many employees put in place earlier this year to set up home working remain their constant office. As we start to look on our homes as our new places of work, then employers must refresh some of their policies to ensure civil liberties like privacy laws are not being infringed, and to look towards a new way of working.
While in the office, management can rely upon perceptions, monitoring, probity and examination in terms of work quality and productivity, quite easily without troubling human rights laws too much. But when this proximity is removed, and the place of work changes to the family home, then so does the perspective on privacy laws. Article 8 of the 1998 Human Rights Act affords protection to private and family life. Employers, rightly so, believe they should receive a ‘fair days’ work for a fair days’ pay’ but how can they monitor output, time at work and concentration particularly when there is a family also occupying that same abode? Well, given the case law previously set down by the European Court of Human Rights then ‘trust and confidence’ is going to have a large part to play.
Historically most office-based roles have been monitored, either passively or actively, through software-based triggers such as search engine results, call numbers and durations, and email activity. Call centre controls have also included apps that monitor computer and phone usage constantly, flagging times of no activity. This is all quite legitimate and proportionate, in the words of the Act, when done in the employers’ premises, using their hardware and internet systems. When this is taken to the home, where internet access is gained through personal hubs and hotspots then privacy laws significantly change.
Website traffic and internet browsing can be monitored through Internet Protocol (IP) addresses. In the office environment user activity can be monitored, but in the home environment there may only be one IP address that everyone uses. Therefore, monitoring could include usage by other family members including children, which would constitute a significant violation of privacy laws.
Online meetings, via applications such as Teams and Zoom, throw up other privacy considerations. Workstations need to be free from images of family members, including background conversations that they may be having. If any of this information is retained, such as recorded meetings, then Employers must act to destroy anything that contains images of others, particularly children.
If employers are beset on monitoring their workers productivity then they may need to revisit their approach to home working and computer use policies, adopt greater trust and accept that flexibility often improves productivity. It also makes for happier staff! Case law already says that ‘employers cannot reduce private social life in the workplace to zero’, so why attempt something that is not within their control. Monitoring at home will not surpass the stringent privacy laws that surround us in these new home working environments. This is something we have to accept, but that is not to say that employees can have a free ride. Time-wasting and repeated absenteeism could result in disciplinary action.
Our Employment Law team take the time to understand such legal constraints and the effect they have on our clients by drafting bespoke contracts, policies and handbooks that ensure compliance. They are then available to provide practical advice, when it’s needed. If you need the same, then call us on 03456 122144 to talk to one of our team.