Employers have historically monitored employees’ hours by using traditional methods such as timesheets, but with working from home increasing during the pandemic, we ask:
Is it legal for an employer to use apps and IT software and what considerations are necessary?
Most employers are aware of the 48-hour limit on average weekly working time under the Working Time Regulations 1998 (WTR). There are ways to opt out of the WTR but there are also penalties for non-compliance. Employers have a legal obligation to monitor an employee’s hours worked and, if they don’t, they could face potentially unlimited fines in the criminal courts.
An employer must take all reasonable steps to ensure this WTR limit is complied with. This extends to keeping a record of those hours worked for two years. However, employers must be careful if they ask employees to download apps on their personal phones or computers, with employees worried that their every move may be monitored or private data accessed.
Under the Human Rights Act 1998 (HRA), the Data Protection Act 2018 (DPA) and the General Data Protection Regulation (UK GDPR), any monitoring of employees and processing of personal data is highly regulated. This includes, under the HRA, the right to respect for private and family life and correspondence.
In line with these principles, an employee should be made aware of (a) what data is being collected (b) how it is being processed and (c) the data collection should go no further than is necessary for the purposes intended.
Under the UK GDPR, employers are required to undertake data protection impact assessments (DPIAs) to evaluate the necessity and proportionality of planned data processing.
The same legal principles apply to monitoring the productivity of your workforce. A business needs to ensure it remains productive and appraisals have traditionally been used for this purpose. Electronic monitoring may now be used instead as a modern form of appraisal.
However, given the potentially more intrusive nature of this monitoring, employees must have a clear understanding of (a) what is being monitored (b) why it is being monitored (c) how the information will be used and (d) who it might be disclosed to.
Overall, if an employer can show (a) it has carried out an impact assessment (b) the data it is collecting is for a legitimate purpose (c) is limited to what is necessary for this purpose and (d) it has informed consent, then apps and monitoring software should be perfectly legal.