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Employers monitoring remote workers for sole reason of measuring performance 'not appropriate', says lawyer

The Government faced calls this week to provide clear guidance for employers on using technology ...
Marita Moloney
Marita Moloney

14.25 15 May 2021


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Employers monitoring remote wo...

Employers monitoring remote workers for sole reason of measuring performance 'not appropriate', says lawyer

Marita Moloney
Marita Moloney

14.25 15 May 2021


Share this article


The Government faced calls this week to provide clear guidance for employers on using technology to monitor remote workers.

It comes after the Irish Congress of Trade Unions raised concerns about a "growing trend" of bosses using artificial intelligence (AI).

The technology can track the number of mouse clicks by a worker, how many emails they send in an hour and time spent on social media.

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ICTU highlighted the issue in its submission to Government about legislation that would give workers the right to request to work remotely post-pandemic.

The body is worried that the use of  AI to monitor remote workers is becoming too much like surveillance, adding that the tools could be used to decide who gets a bonus or let go from a company.

They also urged the Government to bring in clear guidelines to stop employers from using the technology in an invasive way.

On this week’s Tech Talk, Newstalk technology correspondent Jess Kelly spoke to Linda Hynes, an employment law expert and Partner at Lewis Silkin, about the legalities of employers monitoring their employees.

Employers monitoring remote workers for sole reason of measuring performance 'not appropriate', says lawyer

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Ireland's adoption of GDPR means that any monitoring an employer is seeking to do must be lawful, transparent, fair and appropriate, Ms Hynes explained.

They are also required to go through a number of steps before they can go ahead with their plans.

"There is certainly no element of free reign, and I think there is a certain amount of scaremongering perhaps in some of the attention we're seeing about employee monitoring," she said.

"Employee monitoring, the term itself, covers a lot of things.

"Some monitoring may actually be helpful, take for example during COVID, we had an increase in monitoring of employees when we were looking at health information, so that might have been gathering information on employee symptoms, cases of COVID, gathering information on vulnerable employees, what are their travel plans, what are their travel plans.

"All of that falls under employee monitoring, I just think that's not seen as having a nefarious purpose so it doesn't get the same level of attention as maybe productivity monitoring.

Employees could also monitor staff for data loss prevention purposes or security reasons, which can be "quite intrusive" too, Ms Hynes added.

She continued: "The productivity monitoring is probably the one that gets the most bad press because it can be quite intrusive and ultimately that is used to determine someone's performance and ultimately used to determine the level of their remuneration, their bonus, whether they're going to have their performance managed or disciplined.

"That has quite big impacts on employees."

cybersecurity A woman sits at a home office table with a laptop. Picture by: Fabian Strauch/dpa

Ms Hynes said that her firm had seen an increase in employers carrying out location monitoring during the pandemic to ascertain where remote staff were working from to ensure the business was complying with international tax laws.

She also saw a rise in diversity monitoring, particularly during the period when Black Lives Matter demonstrations were taking place.

"Those are different types of monitoring that you can see, some of it is helpful to employees and some of it possibly less helpful for employees, it really depends on what the impact is for employees as to whether it is creepy or intrusive," she said.

Two legal aspects to consider

When it comes to performance monitoring, Ms Hynes explained that there are two major aspects to consider from a legal perspective.

The first is the data protection implications as the employee needs to be aware of the types of monitoring they are subject to and what it might be used for.

The other side of the coin is the employment law implications and how those intersect with the monitoring, she added.

"So productivity monitoring could ultimately have the opposite intended effect because it potentially undermines the relationship of trust between the employee and the employer," Ms Hynes said.

"It's not a good substitution for people management so it's probably not appropriate, depending on the industry, to rely on this type of monitoring solely as a measure of performance.

"You would need to take mitigating circumstances into account if you were looking to performance manage someone in that situation.

"So I think that while it might be a helpful tool, it doesn't replace good management and it shouldn't be utilised on its own when you're managing employees.

"I think it would be really industry-specific as to whether it's justified, the fact that you have to tell your employees about it in order to make sure you comply with GDPR means it shouldn't be covert, it should be transparent, and means [employees] are less likely to accept it."

Main image: A woman using a laptop on a dining room table set up as a remote office to work from home. Credit: Joe Giddens/PA Wire

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