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ICO outlines its new employee monitoring guidance

Makbool Javaid, Partner - Simons Muirhead & Burton

The ICO has issued draft guidance on monitoring at work, which aims to provide greater regulatory certainty and protect the data protection rights of employees and workers. Once approved, this will replace the guidance set out in the ICO’s Employment Practices Code 2011.

Monitoring may be carried out in relation to the quality or quantity of employees’ performances, or for other reasons such as safety or security. Certain monitoring activities have become more commonplace with the rise in remote working following the COVID-19 pandemic, for example, video and audio recording, monitoring of internet usage and the use of timekeeping or productivity tools. The draft guidance seeks to highlight some considerations and requirements that employers should be aware of when implementing monitoring activities.

Transparency is a key feature of the draft guidance. In a post-pandemic world, employers may consider it their right to monitor compliance with a new flexi or hybrid working policy, for example by logging how many days employees are attending the office each week. However, if they are not carrying out such activities in a transparent way, including by providing appropriate notices, then they will likely be in breach of the UK GDPR.

Within the draft guidance, the ICO acknowledges that the legitimate interests of employers is likely to be the “most flexible” lawful basis for monitoring employees under the UK GDPR. However, this may not be appropriate if employers are monitoring in ways that employees do not understand and would not reasonably expect.

Finally, employers must generally not use the information collected for a different purpose to the one it was collected for, unless it is compatible with the original purpose.

The public consultation on the draft guidance will remain open until 11 January 2023.

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