Most people are still working from home as a result of coronavirus measures. Employees generally seem positive about working from home. And employers also see the benefits. At the same time, employers find it difficult to maintain good oversight of what their employees are doing at home.
In the US, so-called ‘spyware’ is on the rise. This is special software that can be installed on work laptops and phones that allows you as an employer to monitor what your employees are doing, for example by measuring the number of keystrokes, taking screenshots of computers every few minutes, or taking photos through their webcams. But in the Netherlands too, there are employers who expect employees to remain ‘clocked in’ to video meetings all day, so that it can be monitored whether they are actually working.
But what is the legal position? When is monitoring personnel permitted and what conditions must an employer take into account?
Conditions for monitoring employees
Five conditions can be distinguished from case law and legislation:
- The employer must inform employees in advance about the monitoring that will take place. Employees must also be informed in advance about what behavior is permitted and what is prohibited. This can be done, for example, with codes of conduct or in a protocol.
- The employer must have a legitimate purpose/justified interest in the monitoring. And this interest must outweigh the employee’s privacy.
- The purpose must not be achievable in a less intrusive manner. That is to say: the monitoring must be necessary in the chosen way.
- The employer is obliged to take into account confidential communication by the employee. For example, an employer may not remotely view emails from the remote worker that are marked as private.
- Finally, prior consent from the works council is required, if there is a works council within the company.
Legitimate purpose versus privacy
But is ‘spyware’ permitted? This depends on the specific situation at the employer. First of all, it is therefore important what purpose the employer wants to spy for. Monitoring working hours or tracking productivity can be a legitimate purpose, if only because as an employer you must ensure that employees do not work too much. But this purpose will not automatically outweigh the employee’s privacy interest. Certainly not if an employer has chosen a spying method with a greater privacy impact, for example because private data is also visible (such as with a screenshot or photo).
It will also not always be easy to demonstrate that a spying method is necessary. In many cases, the purpose, monitoring employee productivity, can also be achieved in another way. For example, by making agreements about output or by regularly engaging in conversation with employees.
Form with minimal impact
Nevertheless, there may be work situations where it is difficult to maintain control over the work, for example if a manager has to manage a very large remote work team or is responsible for functions whose output is difficult to measure. And then ‘spyware’ could offer a solution. If you are considering deploying monitoring software, follow the steps as described above. And choose a form with minimal impact on the employee’s privacy.
If you ask me, trust is better than control. And ‘spyware’ can only be deployed in very special situations, where nothing else is effective.
What are your experiences? How do you maintain control over remote work and contact with your teams?
