Employment law: Labour bring in the ‘right to disconnect and surveillance’

Two employment policies from Labour’s promised manifesto seek to address challenges related to hybrid working, namely employees feeling compelled to work longer hours from home and employee monitoring. Labour hopes their promises to grant employees a right to disconnect and introduce protection from employee surveillance will counter these problems.

Right to disconnect

With the widespread adoption of hybrid working by businesses, the boundaries between home and work life have, for many, never been so blurred. This has led to calls for employees to have a right to disconnect from work after hours, with communication to be kept within working hours. 

In 2017, France introduced a right to disconnect from after-hours work emails. This, in many ways, was legislation codifying a 2004 judgment of France’s highest court, which held that an employee’s failure to answer his work phone outside of working hours did not constitute a fair reason for dismissal. Subsequently, the court has also held that where an employer requires employees to respond to work-related communications outside of regular working hours, the employee is entitled to extra remuneration.

Labour has not yet clarified how they would implement this policy and whether there would be outright statutory restrictions on out-of-hours communications or whether they would seek to create a Code of Practice (as in Ireland). The Irish Code lays out good practices to be followed. Whilst not legally binding and whilst not rendering an employer liable to proceedings, non-compliance with the code is admissible evidence in claims that involve issues covered by the code. 

Many businesses have already sought to take the matter into their own hands and have drawn up hybrid working policies to establish procedures and the expectations of hybrid and home workers. Clear communication between employee and employer is key and for both to understand each other’s needs. Whilst some employees will want to stick to more traditional hours, others will want to have more variability in their hours to accommodate other commitments. The employer will want to retain flexibility for the exceptional circumstances in which they may require employees to work out of hours. 

Employers and employees alike should consider whether there is a need to work outside of office hours. Businesses may wish to consider implementing policies and guidance on communication with employees outside of office hours. Users can already schedule emails to be sent within office hours, which can help prevent employees from feeling obliged to respond to emails outside of office hours. 

Protection from surveillance

Hybrid working has also led to some businesses looking to monitor their employees when they work remotely. While the monitoring of employees has led to concerns about employee privacy, there are good reasons that an employer may wish to monitor employee behaviour. For example, businesses will want to ensure that their confidential information and trade secrets are not disclosed, as well as protect their computer systems from viruses, hacking, and/or misuse. 

Naturally, employers need to take care when considering monitoring their employees. Article 8 of the European Convention of Human Rights (given effect in the UK by the Human Rights Act 1998) (ECHR) enshrines the right to respect for private and family life. Whilst Article 8 focuses on public bodies, it is also important to consider the judgment of Bărbelescu v Romania which compels courts and tribunals to place substantial weight on the ECHR even when the employer is not a public body. 

Article 8 of the ECHR is engaged not only by the monitoring of employees but also by an employer’s requirement for hybrid working. Therefore, employers must take their employees' private lives into account when implementing hybrid working, and any monitoring of employees within their private homes should be limited to the extent necessary. 

As data protection legislation is also engaged by online monitoring, employers must ensure that:

  • What they do is fair, necessary and proportionate (is there a good reason?)
  • They are transparent with their staff, providing information on what is being monitored and why they feel this is needed
  • Data is kept secure, with access being limited to only those who need it, and 
  • They have considered alternatives, including limiting the monitoring as narrow as possible. 

Employers must also ensure that such processing is legal under Article 6 of UK GDPR, and if special category data is processed, then the processing must conform with one of the grounds of Article 10 of UK GDPR. The ICO has emphasised that there is no one-size-fits-all approach and that all legal bases for the monitoring must be identified and suggests that employers should carry out data protection impact assessments (DPIA) before starting any monitoring.

Labour has promised to introduce protections for employees from surveillance by their employers. Whilst they have not provided any details of the protections, they have indicated that, at a minimum, they require employers to consult and negotiate collective agreements on surveillance with trade unions. 

Any employers who feel it necessary to monitor their employees may wish to engage with their employees and their representatives to discuss their reasons for monitoring and what steps they will be seeking to take. Employers should continue to draw their attention to any monitoring being conducted. They should ensure that their data protection and privacy policies are comprehensive and up-to-date, conducting (and documenting) DPIAs wherever necessary and appropriate to do so. 

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Trainee Solicitor, Employment Law, Bishop's Stortford office

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