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Employee dismissed for ‘not typing enough’ – what must an employer consider when monitoring its employees?

Our Employment team share their advice on employee monitoring, particularly in the context of hybrid working.

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Published 11 August 2023

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An Australian employment case made the news recently after an employee had her employment terminated because she was ‘not typing enough’.

The employee worked predominately from home and, in order to monitor her as part of a performance improvement plan, AIG used specialist keystroke software to examine how often she pressed the keys on her keyboard. The software found that she had ‘very low keystroke activity’ from October to December 2022, with the employee recording a total of 320 hours with zero strokes across these months. The employee subsequently brought a claim of unfair dismissal against her former employer, which was rejected by Australia’s Fair Work Commission last month.

The case highlights some interesting considerations for employers when it comes to employee monitoring, particularly in the context of hybrid working.

Indeed, when monitoring employee productivity, employers must firstly consider and respect the data rights of its employees. There are a number of aspects of the data protection legislation that an employer will need to consider and the purposes for which monitoring is conducted and the data is collected are key to justifying an employer’s conduct. The Information Commissioner gives examples of potential reasons to conduct employee monitoring, including to allow employees to work safely in a different environment, or to protect the business from theft, complaints or legal action.

In the UK, where monitoring is both necessary and justified, employers must also ensure that employees are aware that they are being monitored and put in place the appropriate notices and policies. Employers should also consider the risk that the monitoring could encroach into the employee’s personal lives – could it capture personal emails and calls for example?

Employers should also consider whether the aim of the monitoring could be achieved in another way – for example by regular check in meetings between the employee and their line manager.

If an employer believes the monitoring is necessary, they should endeavour to be as open and transparent as possible with their employees and consider the least intrusive route.

It’s likely that employees will perceive even light monitoring as fairly invasive of their privacy, particularly if they are being monitored in their home. Employees need to understand how they are being monitored and what is expected of them, therefore an employee monitoring policy is crucial.

Although employees are arguably likely to be more productive when they know they are being monitored, employers should also consider how monitoring may impact the wider relationship with their employees. Employees may perceive that their employer does not trust them, and that can impact the culture of the business.

Ultimately, given that hybrid working isn’t disappearing anytime soon, employee monitoring is likely to remain part of the discussion.

If you have any queries regarding employee monitoring, please visit our Employment Lawyers page to get in touch.

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Longer Reads

Employee dismissed for ‘not typing enough’ – what must an employer consider when monitoring its employees?

Our Employment team share their advice on employee monitoring, particularly in the context of hybrid working.

Published 11 August 2023

Associated sectors / services

Authors

An Australian employment case made the news recently after an employee had her employment terminated because she was ‘not typing enough’.

The employee worked predominately from home and, in order to monitor her as part of a performance improvement plan, AIG used specialist keystroke software to examine how often she pressed the keys on her keyboard. The software found that she had ‘very low keystroke activity’ from October to December 2022, with the employee recording a total of 320 hours with zero strokes across these months. The employee subsequently brought a claim of unfair dismissal against her former employer, which was rejected by Australia’s Fair Work Commission last month.

The case highlights some interesting considerations for employers when it comes to employee monitoring, particularly in the context of hybrid working.

Indeed, when monitoring employee productivity, employers must firstly consider and respect the data rights of its employees. There are a number of aspects of the data protection legislation that an employer will need to consider and the purposes for which monitoring is conducted and the data is collected are key to justifying an employer’s conduct. The Information Commissioner gives examples of potential reasons to conduct employee monitoring, including to allow employees to work safely in a different environment, or to protect the business from theft, complaints or legal action.

In the UK, where monitoring is both necessary and justified, employers must also ensure that employees are aware that they are being monitored and put in place the appropriate notices and policies. Employers should also consider the risk that the monitoring could encroach into the employee’s personal lives – could it capture personal emails and calls for example?

Employers should also consider whether the aim of the monitoring could be achieved in another way – for example by regular check in meetings between the employee and their line manager.

If an employer believes the monitoring is necessary, they should endeavour to be as open and transparent as possible with their employees and consider the least intrusive route.

It’s likely that employees will perceive even light monitoring as fairly invasive of their privacy, particularly if they are being monitored in their home. Employees need to understand how they are being monitored and what is expected of them, therefore an employee monitoring policy is crucial.

Although employees are arguably likely to be more productive when they know they are being monitored, employers should also consider how monitoring may impact the wider relationship with their employees. Employees may perceive that their employer does not trust them, and that can impact the culture of the business.

Ultimately, given that hybrid working isn’t disappearing anytime soon, employee monitoring is likely to remain part of the discussion.

If you have any queries regarding employee monitoring, please visit our Employment Lawyers page to get in touch.

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