Monitoring teleworking: can your employer use monitoring software?

Christophe Delmarcelle, medeoprichter van advocatenkantoor DEL-Law, bevestigt deze trend:

"Looking at the global situation, it is clear that the use of this type of software by employers has increased tremendously in the past 12 to 36 months. This is quite logical in a post-Covid world where working from home has increased dramatically." This has also changed the way employee performance is monitored.

Please note privacy

Although this software is common, is its use legal? In Belgium, there is no specific legislation regulating the use of such programmes. In other words, there is no explicit prohibition, especially since an employer has the right to control the work of his employees.

"The Employment Contracts Act provides that the employer has authority over the employee, which indeed implies a form of supervision.’"This principle generally does not pose any particular problem when the work is carried out at the workplace."When working from home is more sensitive, however, because privacy issues play a more important role than in the workplace.’

A European directive on privacy protection has been implemented in Belgium. This means that all monitoring programmes are allowed, but certain applications may be problematic because they violate privacy. The lawyer cites as an example keyloggers, software that records what an employee types on the keyboard. "Some programmes can even remotely turn on the camera and take a picture of the employee behind his screen."

Sanctions

What happens if an employer crosses privacy boundaries? While there is no specific legislation on this software, privacy violations can lead to sanctions.

If you violate your employees‘ privacy, you could face fines,’ says Christophe Delmarcelle. Moreover, evidence obtained during such checks is invalid and cannot be used in court, for example to justify dismissal for cause.

Finally, the employee can claim damages for breach of privacy. So employers are certainly at risk.

Instead of opting for extreme methods, many employers prefer so-called ‘soft monitoring,’ such as holding regular interviews. The employer may also require the employee to be reachable via Teams or other communication tools.

It is advisable to adopt this kind of practice, as it is completely acceptable and allows monitoring of the employee's presence at the workplace. In my opinion, this is the best approach.

Unfair workers also at risk

If employers can be sanctioned, what about employees who are dishonest? With working from home, it is indeed easier to deceive the employer, for example by using mouse gestures.

We are seeing a kind of ‘arms race’,’ notes Christophe Delmarcelle. On the one hand, employers have increasingly sophisticated means of control; on the other, employees use various methods to evade control. These range from simple tricks, such as a fan that moves the mouse, to sophisticated software that blocks employer monitoring.

Such manoeuvres, however, are not without risk. Bypassing employer control violates the employee's obligations as stipulated in the employment contract.

Quant to loyalty and respect to the employer, one violates his obligations.’ Besides, if an employee evades control, it means that he is not performing his duties. This is considered a fault because the employee is obliged to do the agreed work.

The employee risks being fired for cause if the employer discovers the misconduct.’ Further, the employee may have to pay damages.

Suppose that the software used by the employee causes damage to the employer's IT systems, such as through viruses or other problems. These actions pose significant risks to the employee.