LRD Booklets March 2020

Monitoring and surveillance at work - a practical guide for trade union reps

Introduction

Introduction

[pages 5-6]

There have never been so many different ways for management to watch over and monitor the workforce. Moving on from the days of bag checks and timesheets, monitoring is now far more likely to involve looking at internet usage, logging phone calls and taking CCTV footage. New technologies have created even more opportunities with surveillance software making it possible to assess performance on the production line, manage workers remotely, track deliveries, time toilet breaks and even determine if someone is in the right frame of mind for work.


The use of algorithms to assess workers’ output has led to cases of them being reprimanded for not keeping to strict schedules without any human interaction taking place. Recently Barclays bank found itself in a media storm after it used a software pilot that tracked when employees were away from their desk, how much time they spent on various tasks and that even sent warning messages if they were deemed not to be working hard enough.


The need for robust safeguards to protect workers from intrusive monitoring has never been more urgent. This intense form of monitoring accompanied by micro-management is also often combined with a high level of casualisation, with workers on precarious contracts and highly vulnerable to losing their jobs if they deviate from instructions or perform too slowly.


Every few years the Labour Research Department has surveyed unionised workplaces to gauge the level of monitoring and surveillance taking place and it is clear that very few workplaces remain surveillance free. A TUC report I’ll be watching you found that up to 56% of UK workers believe they are being monitored at work, with 66% concerned that workplace surveillance could be used in a discriminatory way if left unregulated.


Trade union reps are now tasked with having to keep on top of what data is being collected, how it is being collected and what it is being used for. Rapid technological innovation has resulted in “function creep”, with technological features that were originally adopted for an accepted purpose, such as protecting driver safety or controlling product flow, taking on a wider and more intrusive function — for example, individual performance monitoring or regulating break start and finish times or unscheduled breaks — until every aspect of the worker’s day is monitored simply because the software allows the employer to do so.


Major concerns have also been raised by the use of covert surveillance methods, for example, through hidden cameras or recording equipment. This can also be undertaken by software which tracks computer or internet usage and other activities, or through the use of mystery shoppers covertly monitoring or recording staff in the retail sector.


TUC general secretary Frances O’Grady has said that surveillance should not be wielded as a weapon meant to keep tabs on workers.  “Employers must not use tech to control and micromanage their staff,” she said. “Monitoring toilet breaks, tracking every movement and snooping on staff outside of working hours creates fear and distrust. And it undermines morale.”


Union reps have a key role to play to ensure management do not cross the line and that any use of surveillance technology is justified. Respondents to the TUC survey particularly objected to surveillance targeting specific individuals, monitoring via webcams on computers, or going through someone’s social media accounts.


On a positive note, workers received an important boost with the introduction of the General Data Protection Regulation (GDPR), which replaced the 1998 Data Protection Act in 2018. This has helped strengthen data protection law by making clear when and how employers can use technology to monitor their workers. However, most workers do not know how the law protects them and it is frequently down to union reps to navigate this complex and nuanced area.


Brexit and monitoring laws


Key legal protections from workplace monitoring rely on EU law – the EU General Data Protection Regulation (GDPR).


Following the UK’s referendum vote to leave the EU on 23 June 2016, the UK government entered into a Withdrawal Agreement with the EU under which all EU laws and regulations are to cease to apply in the UK at the end of the “Brexit transition period” (currently 31 December 2020).


However, this is one area of law to which Brexit is not expected to make any practical difference. This is because the UK must continue to comply with the GDPR in order for UK organisations to be allowed to continue transferring data to EU member states and offering goods and services to EU citizens.


This is why one of the UK’s first acts was to write the GDPR into national law, through the Data Protection Act 2018 (DPA 18), in force since 23 May 2018.


However, the same may not be true of another key branch of legal protection – privacy rights under the Human Rights Act 1998 (HRA 98). The current government has promised to “update” HRA 98 to ensure “a proper balance between the rights of individuals, our vital national security and effective government”. In its trade negotiations with the EU, the government has refused to commit to remaining bound by the European Convention on Human Rights.


The structure of the booklet


This booklet provides a guide to the new surveillance techniques operating in workplaces, the range of technology being used and the law governing the extent to which employers can monitor workers and regulate the treatment of their personal data. It also covers recommended practice for trade union reps in ensuring that employers stay within the law, and in countering oppressive and intrusive forms of workforce surveillance and the misuse of monitoring data.


The booklet is informed by a survey in 2020 of union reps on the LRD database, who were asked to provide information on any surveillance or monitoring systems operated by their employers, the type of technology used, union responses to the monitoring and details of any agreements or workplace policies governing this monitoring.


Chapter 1 provides an overview of the different forms of workplace monitoring and surveillance identified by union reps and officials, and the developments in technology enabling the growth of these techniques.


Chapters 2 to 6 explore the different forms of workplace monitoring and surveillance in more detail, covering: CCTV and video and audio recording of workers; vehicle tracking; monitoring of individuals through hand-held or wearable technology, biometrics and other tracking technology; call centre monitoring and mystery shoppers; and monitoring of electronic communications including phone calls, emails and internet use.


Chapters 7 to 10 provide a more detailed examination of the law relating to workplace monitoring and surveillance, including the significance of the GDPR as well as ICO guidance to employers in implementing the law. Key legal cases are also identified, and recommendations are provided for union reps in using the law and for ensuring that employers stay within its limits. Laws relating to the surveillance powers of public authorities are also outlined.


Chapter 11 looks at the blacklisting scandal in the construction industry; the union campaigns for justice and outlines the main laws against anti-union blacklisting.


Chapter 12 draws on the best practice identified in the preceding Chapters and identifies key elements for negotiating a workplace policy on monitoring, and ensuring that employers respect the core data protection principles set out in law.