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As employers prepare for the lifting of work-from-home restrictions and an end to lockdown, it is rapidly becoming clear how much the world of work has transformed in the past 18 months.

While the transition to agile working was already underway in many companies and sectors of the economy, a more flexible approach to when, where and how tasks are completed is now being embraced by a far wider array of businesses.

At a recent Trowers & Hamlins webinar on the future of agile working, we asked the 250 people in attendance for their views on how the pandemic has shifted ways of working. We found a massive 95% of those present felt the majority of their staff will now split their time between home and the office. The change will be permanent in many cases: 49% of those polled said they were considering reducing office space, with 72% looking to redesign their space to better facilitate collaboration and flexibility.

There are many upsides from such a shift, with signs that a transition to agile working will make the workforce more inclusive. We found, for example, that 72% of those we polled had observed an increase in the number of applicants for new jobs applying from further away from the office, making the pool of potential employees much larger, and there was also an increase in applicants who were parents or carers.

At the same time, there are many new risks that employers need to consider when embracing remote working. In the face of concerns about cybersecurity, the protection of confidential information and drops in productivity, a growing number of employers have started to explore ways in which they might monitor staff while they are working at home, and a swathe of new technologies is being developed to keep track of homeworkers.

Rebecca McGuirk, partner in the employment team at Trowers, says: “Some employers have started to introduce technology that can monitor productivity and output when employees are working remotely. The problem is that there is a real nervousness that that’s not really why it has been introduced, and instead of simply keeping track of the hours that people are putting in, it is being used to keep watch on exactly what they are doing.”

Whether surveillance involves random spot checks on emails and internet browsing or stretches to more systematic observation through the recording of laptops, calls and keyboard use, it creates both employment contract and privacy law issues. It is now possible to invest in facial recognition technology that can monitor exactly when an employee is at their computer screen, but employers might want to think carefully about going down such a route.

Emma Burrows, partner and head of the employment practice at Trowers, says: “Broadly speaking, agility plays to technology brilliantly, because people are using much more technology. Because we are all reliant on it while working at home, people have started to explore new technological solutions to everything from recruitment to workplace collaboration.”

A great deal of investment has gone into innovation to create better tools to facilitate agility, to support workers in keeping confidential information safe and to enhance diary management across teams that are embracing a hybrid working model.

But Burrows adds: “Now, people are starting to think about surveillance. You have dinosaurs in many organisations who just don’t believe that people will be working as hard if they are working from home. Equally, in areas like city trading, there are regulatory requirements for increased monitoring.”

The questions now surround the extent of monitoring that will be acceptable to staff, and how that information might be used.

McGuirk says: “At the moment, for lots of organisations, agility has really been about where you work. The next bit as we move forward on this journey is going to be about when you work, and whether organisations need to dictate core hours or will be quite happy for some employees to clock on and clock off according to what suits their personal circumstances.”

She adds: “I don’t think, just because you are monitoring people, you necessarily need to suggest that they cannot do other things during the day. Hopefully, the mindset of the employer will be focused on what people are producing rather than the hours they are sat at their desk. Just because someone is in front of their screen does not necessarily mean they are doing something worthwhile.”

In many ways, questions about employee surveillance are not new, in that they align with the way that organisations might have tracked the hours that people were in the office or monitored when they were logging into the system. But, says Trowers employment partner Nicola Inhatowicz: “Some of the new technology being used to take screenshots of what people are doing on their PCs, or tracks keystrokes, mouse movements and websites visited, is really massively intrusive.”

It is now possible for tech to observe attendees at video conferences and report if they navigate away from the app in question for longer than 30 seconds during a meeting. It is also now feasible to mirror everything from an employee’s laptop onto a desktop back at the office, so an employer can see everything being done.

But all of these activities create legal issues that need to be given careful consideration. Under human rights legislation, for example, there is a right to respect private and family life, including correspondence.

A critical point of good practice is that employers should consult with staff before introducing widespread monitoring, and they will certainly need to make sure that employees are aware of the extent of the monitoring, and the reason for it.

McGuirk says: “A lot of employers will already have policies around monitoring and surveillance, including an ability to access emails if necessary, for example. If they decide to introduce more monitoring, they will need to include it in contracts of employment and handbooks, and make sure fair attention is drawn to it.”

If an employer excessively monitors staff without them knowing, it might be in breach of the implied duty of trust and confidence in the employment relationship. There might also be data protection issues, if the information generated by surveillance relates to identifiable individuals.

That said, if a business genuinely suspects a team member is preparing to leave for a competitor and might be sharing confidential information, then the monitoring of use of the company’s systems probably would not fall foul of the law.

What is clear is that the world of work is changing fast, creating myriad opportunities and many new legal risks. Burrows concludes:

"In the past year, employers have witnessed a great deal of change to working practices. Workforce monitoring and surveillance technology will certainly be a feature of the landscape going forward, creating human rights, privacy and other issues. A key consideration must always be what your staff are willing to accept."