Many of us will have experienced it at one time or another: the struggle of trying to focus on a task as an overbearing boss breathes anxiously down your neck.
Some of us may have expected the coronavirus lockdown to bring an end to this kind of encounter – with 44% of working Britons putting in hours from home in early May.
But more than nine months into the pandemic, with England in its second national lockdown, demand for work-based surveillance software has boomed.
There are reports of bosses in some parts of the world downloading programs which screenshot their staffs’ computers at regular intervals to monitor their productivity.
Other people who cannot work from home have been subject to new monitoring methods such as contact tracking and temperature checks in a bid to contain the virus.
Meanwhile, many people have lost their jobs amid the economic turmoil.
Extensive research has been conducted on the effects remote working is having on people, which inevitably differs across industries and working environments.
A number of businesses have embraced the transition to the home office, choosing to switch to home working indefinitely.
Other companies expect to return to their previous set-up when the pandemic is over, with concerns over dwindling productivity.
Earlier this year, Exeter university law professor Dr Philippa Collins wrote about the “lasting impact” of the pandemic on our right to privacy in the workplace in a piece for UK Labour Law Blog.
“Although UK workers are no strangers to worker surveillance measures in normal times, it appeared to me to be increasing rapidly across a variety of jobs and contexts,” she told EachOther, on the impact of the coronavirus.
We spoke to Dr Collins to find out about our rights as the pandemic transforms the way many of us work.
A conference meeting held on Zoom. Credit: Unsplash
What really interests me is that worker surveillance has a tendency to creep outwards, from within the workplace to beyond it […]
Dr Philippa Collins
What sparked your interest in the topic of workplace surveillance?
In the last few years, there have been decisions in a number of “big cases” – particularly at the European level – on surveillance of workers. As it is the most direct infringement of a worker’s human rights, the cases are framed in terms of privacy or the right to enjoy one’s private life.
What really interests me is that worker surveillance has a tendency to creep outwards, from within the workplace to beyond it, and from a privacy risk to a much more significant threat to workers’ human rights. For example, surveillance of the personal social media profiles of workers is a well-known phenomenon, and extensive surveillance across different aspects of a person’s life is likely to affect how they express themselves and how they choose to associate with others, both as individuals and collectively through groups such as trade unions, political parties or religious groups.
We must interrogate each stage of this process. How much surveillance is legitimate during working time? Are there some workplace surveillance measures that we are not willing to accept as a society? Do we need to introduce clearer limits on an employer’s capacity to carry out monitoring of workers in their activities outside working time?
In answering these kinds of questions, we should consider a broad range of privacy rights – the right to control what information we share with others, the right to develop relationships with others free from influence or interference, as well as data privacy and privacy of correspondence. But we must also factor in the risks to other human rights, the human right to freedom of expression and opinion, to non-discrimination, to freedom of association and so forth. These additional considerations may well shift the compromises that we are willing to make.
How has the pandemic changed surveillance in the workplace?
What prompted me to write a recent blogpost for the UK Labour Law blog was the huge uptick in the reporting and apparent prevalence of worker surveillance measures during the pandemic. Although UK workers are no strangers to worker surveillance measures in normal times, it appeared to me to be increasing rapidly across a variety of jobs and contexts. Workers who continued going to a central workplace might have been subject to contact tracking or health monitoring measures such as temperature checks.
Workers who were able to work at home during the pandemic were also subject to different forms of surveillance than they might have previously experienced. Reports included workers being required to keep a video conferencing call open throughout the day so their manager can check they are at their desk and a 71% increase in demand for work-based surveillance software, such as Hubstaff or ActivTrack, during the pandemic.
Such programmes gather significant amounts of data from employees whilst they are using their electronic devices and generate a ‘productivity score’ based on their daily activities. The use of these latter kinds of measures were troubling to me, particularly during a completely unprecedented time when many were struggling with mental health issues and/or trying to balance caring responsibilities with their working commitments with very limited support.
What are the reasons behind this change?
The two types of monitoring measures can be clearly distinguished from each other. Monitoring intended to slow the spread of the virus and to keep workers as safe as possible, if they must attend a workplace, can be justified on (temporary) public health grounds. Any processing of health data is prohibited unless it is within an exception set out in the Data Protection Act 2018. These kinds of measures should be accompanied by appropriate health and safety protective measures, such as the provision of personal protective equipment (PPE).
Counter-intuitively perhaps, given the rest of the discussion, some groups are fighting to have these kinds of protective measures put in place by the company for whom they work. In a decision released just last week, the Independent Workers Union of Great Britain (IWGB) received a declaration from the High Court that UK law had failed to implement health and safety standards properly, leaving workers in the gig economy unprotected in some key respects. This is an important victory for a group of workers who are particularly vulnerable with regards to their health and safety in their unusual and ever-changing workplace(s).
Many employers trust that their workers are doing their best in difficult circumstances.
Dr Philippa Collins
In contrast, the use of productivity monitoring measures arises from a concern that employees are less productive when they are not being directly supervised in the workplace. This concern has previously hindered the move, desired by many in the workforce, to more flexible working patterns which might include some working from home, remote work or non-standard working hours.
We might note, however, that this does not apply to all employers. Many employers trust that their workers are doing their best in difficult circumstances. Many have stated that they plan to make it easier for employees to work from home in the long run, because the experiment with working from home that was forced by a mandatory lockdown was a success.
Monitoring intended to slow the spread of the virus and to keep workers as safe as possible, if they must attend a workplace, can be justified on (temporary) public health grounds. Credit: Unsplash
Can you share a story of workplace surveillance amid the pandemic that has worried you most?
I would probably highlight two from almost opposite working lives. The first is [US technology correspondent] Adam Satariano’s experiment with turning Hubstaff surveillance software upon himself and sharing the information collected with his own boss at the New York Times. The piece highlights not only the amount of information collected by the software, which includes screenshots taken from his laptop whilst his children are in the room and his location data whilst going for a bike ride or to the wineshop, but also how he feels about it.
He’s disappointed by his low productivity scores initially, but ultimately “games” the system by leaving up productive-looking documents on his screen whilst he takes a break in case anyone checks. By Week 3, his boss has stopped reading the updates from the programme, because the measures being applied are – she feels – irrelevant to how well Adam is doing his job. Certainly food for thought for anyone considering adopting such surveillance practices.
At the other end of the spectrum is an account from an agency worker, John, of his experience working at an Amazon Distribution Centre in the West Midlands during the pandemic.
His statements such as, “I don’t think there’s a single spot in the building where you aren’t under surveillance by at least one CCTV camera”, supported by a photo of said cameras and resulting in a feeling of constantly being watched, are Orwellian.
Workers are expected to be constantly moving, an expectation that is enforced by intensive monitoring. John observes, and indeed told his manager, that this expectation cannot be reconciled with social distancing measures when agency workers need to check the same noticeboard to receive their work allocation for the day.
Amazon did nothing to address John’s concern. Amazon’s management practices have long been questioned, but reading his account was difficult, particularly at a time when Amazon’s business is booming because we are not able to go to our local high streets during the second lockdown.
[EachOther has contacted Amazon for comment].
How informed do you think the British public is about its rights to privacy at work?
It’s very difficult to know and our awareness of our fundamental rights is something I’d like to investigate further. Conversations I have had in recent years would indicate that our understanding of our rights is variable across different groups of workers and is very patchy. For example, most people would have heard of the General Data Protection Regulation (GDPR) because of the changes in policies that it prompted and the media coverage of the introduction of the new rules.
People may not appreciate, however, that they have powerful rights as a ‘data subject’ under the GDPR, which is implemented by the Data Protection Act 2018 in this country. The Information Commissioners Office (ICO) produces excellent information about your data privacy rights and can also investigate and fine data controllers who breach the rules.
These individual rights have been put to creative use in the gig economy in recent years. Individual workers (the data subjects) may request their data from the company they work for (the data controller). Getting a copy of all of the data that such a company holds on you can be an important and empowering step, rebalancing the [imbalance] in data and information that usually exists between employers (lots of information) and workers (very little information). More challenging is interpreting and understanding the data that you receive, which is where workers’ groups can be helpful.
Along with a colleague in the Netherlands, I’ve done some research on businesses asking (or even requiring!) their workforce to wear activity trackers, such as Fitbits or Apple Watches, and then to share the data with the employer.
Dr Philippa Collins
How have people reacted to your findings? Have any responses surprised you?
Along with a colleague in the Netherlands, I’ve done some research on businesses asking (or even requiring!) their workforce to wear activity trackers, such as Fitbits or Apple Watches, and then to share the data with the employer. We looked at it from a data protection perspective, investigating the likely lawfulness of such data monitoring. Most people that I discussed the research with had a “yuck” reaction: “Oh no! I would never share that kind of data with my boss”, “that can’t be legal” etc. They are not surprised when our instincts align, and I say that our research raises serious questions about the lawfulness of the employers processing data from health trackers.
What surprised me was the people who said the opposite: “sure – have the data, I’ve got nothing to hide.”
Dr Philippa Collins
I thought that showed a really interesting relationship with your own personal data and a strong sense of trust in one’s employer. Usually, their reaction changed when I explained how the data could be used in the future – performance management for anyone who is not active enough, capability concerns about anyone whose data showed health problems, and so on. For most people, the longer-term consequences or risks were sufficient to make them re-think their initial response.
How difficult was it to uncover the various computer programs put in place by companies to monitor people from home?
The software itself is relatively easy to find. The companies need a public presence to sell the software after all! What is difficult to understand, without contacting the company directly, is how they work: what data they collect, how their algorithms analyse that data to provide information that is useful to the employer and how they fit within the regulatory regime which is applicable in that jurisdiction.
What is also very difficult to find out, beyond press releases and media reports, is who buys the software and relies upon it in their business. The relationship between software designers and the employing companies is a complex one, both legally and ethically. Unpacking and properly regulating that relationship will take many years.
Surveillance cameras. Credit: Unsplash
What’s the most important thing employers should know in regards to workplace surveillance amid Covid-19?
In terms of the right to privacy, every time that you introduce a new measure of workplace surveillance, or review an existing one, you must ensure that it pursues a legitimate aim, such as the protection of public health or the security of confidential information, and it must be necessary to achieve that aim. That standard of necessity can be applied vigorously where the privacy risk is severe and it can be a difficult threshold to surpass. Your measures must also comply with the Data Protection Act 2018 which is no small feat.
I would want workers to keep questioning new or existing surveillance measures.
Dr Philippa Collins
What’s the most important thing workers should know in regards to workplace surveillance amid Covid-19?
Press for a specific justification for those policies, with the help of your union if you are a member. We know that emergency situations often lead to the introduction of more stringent measures and result in serious infringements upon people’s rights, so we must keep asking why they are in place and how long they will last. In the long term, we do not want to find that we signed our rights away permanently on the basis of what is (I fervently hope) a temporary goal of fighting the virus.
Do our workers’ rights give us enough protection from undue workplace surveillance?
At international level, the framework that is applied is able to reconcile and balance the rights and interests on either side of the dispute – employers and workers. You can find a really interesting factsheet on the case-law of the European Court of Human Rights on workplace surveillance here.
At the domestic level, so the rights that we have within England and Wales for example, there are some significant gaps in protection. Rights often don’t extend broadly enough to cover all individuals who are at risk of mistreatment at work, such as excessive workplace monitoring. For example, not everyone is protected by the right not to be unfairly dismissed, which is the right you might rely on if you believe you have been subjected to unfair surveillance and dismissed as a result.
In addition, there are currently serious concerns about access to justice in Employment Tribunals, with reports of long backlogs of outstanding claims partially as a result of Covid-related disruption. The situation is likely to be aggravated by an increase in redundancy and related claims in the coming months. Rights do not mean much for workers in their daily lives if they cannot be enforced and both parties to the relationship know it.
A construction worker. Credit: Pixabay.
If you could reverse one law/implement one law about workplace surveillance, what would it be and why?
My most optimistic recommendation, which I have explored in my research, would be the introduction of a Bill of Rights for Workers. It would regulate workplace surveillance, but also many other forms of behaviour that infringe upon the rights of workers that are protected by the European Convention on Human Rights. It would give workers of all types an opportunity to challenge practices that they think might violate their rights and prompt employers to consider carefully whether their policies and practices are a justified restriction upon those most fundamental rights. It would be the “gold standard” of human rights protection for workers, although I have to acknowledge that my proposals are very aspirational and ambitious in the current political context.
