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Why employers should be careful before blindly relying on spyware data to discipline employees
Adrian Fryer
The rise of remote work post-COVID-19 is arguably the most radical shift in working patterns since the advent of email. Many employees now value flexibility as much as pay. But this flexibility comes with a trade-off – reduced visibility.
In the traditional office, presence could signal productivity (however imperfectly). Now, HR and managers are left wondering: how do you measure effort and output when no one can see it?
Cue a massive uptake in employer use of remote spyware – for employers to monitor employee productivity from afar. However, the recent employment tribunal case of Lanuszka v Accountancy MK Services illustrates the importance of questioning the data gathered by this spyware and adopting a reasonable approach to the time which employees spend browsing during the working day. In this case, the employer did not prohibit personal searches using company equipment during working time. Remote spyware installed on the employee’s PC showed she had spent around an hour and a half, over two days, on ‘personal matters’ including scrolling Amazon, Very and Rightmove. She was dismissed for misconduct. The employment tribunal found her dismissal to be unfair. In particular:
- The amount of time spent doom scrolling was not excessive – especially given personal use of the computer was not banned.
- The employer had not conducted a reasonable investigation – it had failed to look behind the data presented by the spyware package. In fact, the spyware had incorrectly categorised some work-related searches as personal use.
It is important that employers are able to monitor and assess employee productivity when they are engaged in remote working. Monitoring software is one way of doing this. However, this case illustrates that employers should not rely blindly on the data collected and should conduct their own ‘human’ analysis before taking action. Clear boundaries of acceptable personal use should also be communicated to avoid uncertainty and reduce the risk of any disciplinary action being challenged.