As part of our summer 2024 employment trends series, we reflect on the recent focus on employee monitoring, recent ICO guidance for employers and the forthcoming Digital Information and Smart Data Bill.
Employee monitoring
The data protection implications of employee monitoring by employers, particularly as part of return-to-office strategies, has come under closer scrutiny in recent months. Employee monitoring technologies range from less intrusive methods, such as badge swipes, to more intrusive options, like fingerprint scanning and facial recognition. Biometric data is “special category data” under data protection legislation and attracts additional protections due to its sensitive nature. Employers must therefore take extra steps to justify the processing of such data, ensuring that it is necessary and proportionate for their stated purposes. Earlier this year, the Information Commissioner’s Office (ICO) published guidance on the requirements with which employers must comply when using biometric data. Our blog summarised the key points.
Emphasising the importance of this topic, the ICO recently issued a directive to a leisure operator to cease using biometric monitoring and delete all related data, after finding the organisation’s practices were not justified in the circumstances. Looking forward, justifying the use of biometric data for employee monitoring will require a robust demonstration of necessity that aligns with the strict criteria set out by the ICO.
ICO guidance and statistics
In recent months, the ICO has expanded the guidance it offers employers to help them comply with their data protection obligations. In addition to its guidance on biometric data and the use of biometric technologies mentioned above, at the start of the year it published draft guidance on retention of employee records and staff recruitment procedures. Read more in our blog. And, at the end of 2023, it published new guidance for employers on monitoring employees.
The number of complaints to the ICO about the handling of Data Subject Access Requests (DSARs) increased last year by 13.5% from 2022. This is indicative of a trend of increasing numbers of employees or former employees submitting DSARs. Based on the requests we receive for advice on responding to DSARs, this trend looks set to continue.
Digital Information and Smart Data Bill
The King’s Speech indicated that the new government will introduce a Digital Information and Smart Data Bill. Little detail is available at this stage but the King’s Speech foreshadowed the establishment of digital verification services, which would cover pre-employment checks. It also promised to modernise and strengthen the ICO and give it new, stronger powers, alongside targeted reforms to data protection law.
