Employment Law Update

HYBRID WORKING: WHY IS DATA PROTECTION RELEVANT?

By Sean Morris

Legal Manager, Navigator Employment Law

Many businesses first allowed staff to work from home as the country went into its first Covid-19 pandemic lockdown back in early 2020. At the time, management and HR were mainly focused on the practicalities, such as supplying essential equipment for remote working and facilitating team communication. Initially the security of personal data used by staff who were no longer working from a business’s premises, was an issue given little attention.

But things have changed considerably since then. The Information Commissioner’s Office (ICO) online guidance on this issue has been updated on several occasions, and it sets out a number of key issues for HR to consider when staff are working remotely.

Data security for home working

Data protection is relevant because UK legislation requires businesses to use personal data securely, taking “appropriate technical and organisational measures against unauthorised or unlawful processing, and against accidental loss or destruction of, or damage to, personal data”. The ICO Guidance on working from home now contains a security checklist for employers to apply, and explains how completing a Data Protection Impact Assessment (DPIA) may be a requirement, and is always best practice, if staff work remotely and use personal data on behalf of the business. A number of practical issues businesses should consider are examined - for example, the secure use of cloud storage for accessing personal data, arrangements for remote access, and whether to allow staff to use a personal device for work, looking at the pros and cons of alternative options.

Cyber attacks or untrained staff without guidance – which security risk is greater?

The continuing increase in cyber attacks, to which homeworking staff may be more vulnerable, is one of the data security issues, which needs consideration. The government recently urged all businesses to improve their cyber security practices, following publication of the 2022 Cyber Security Breaches Survey by the Department of Digital, Culture, Media & Sport (DCMS) on 30th March. Figures show cyber-attacks are increasing in frequency: almost one in three businesses (31%) suffering attacks report they now experience breaches or attacks at least once a week.

But the ICO guidance approach makes clear this not the only security risk, which needs to be considered by a business. How staff carry out their work while off-site also requires consideration, which of course is relevant to HR when looking at what policies are required, as well as planning for staff training needs, and also deciding what amounts to misconduct. Those who use personal data while working remotely may need specific training on their obligations in relation to data protection, which would cover procedures they must follow, and address what is, and is not, authorised use of personal data.

Monitoring staff to improve security?

Staff monitoring is another reason why data protection is an issue for HR. Organisations like the FCA indicated that regulated businesses were expected to have appropriate arrangements in place to ensure there could be no illegal trading activities while staff worked remotely. Over the past two years, there has been a steady increase in staff monitoring by businesses. This can take various forms, ranging from checks on email traffic and content, with software checking for “danger” words or destination addresses in emails, to more intrusive forms of monitoring which involve using cameras on remote devices.

Last October the ICO concluded a public consultation on updating their Employment Practices Code, which addresses staff monitoring. It gives a clear indication of the ICO’s current position on this issue, namely that workers’ private lives usually extend into the workplace – more so, when carrying out work from home - and staff have an expectation of privacy, even where informed they will be monitored. Where monitoring is carried out, it is a legal requirement that a DPIA should be undertaken, and that staff are provided with clear information in advance about the monitoring that will take place. For the monitoring to be justified, a proportionality test must be met, requiring an employer to consider their reasons for monitoring and consider whether they are sufficient to justify intrusion into staff’s private life and whether the chosen means of monitoring staff are proportionate. HR professionals should tread carefully in situations where staff monitoring is proposed as a security measure, not least because of the potential for employment claims. The duty of mutual trust and confidence implied into an employee’s contract is relevant since there may be situations, depending on the extent of the monitoring involved, where the employer might breach this duty. An employee unfairly targeted by monitoring might resign and claim constructive dismissal or – if they have a protected characteristic - claim they have been unlawfully discriminated against. There is also a risk of civil claims brought for breach of confidence, damage (including distress) for breaches of data protection legislation, and breach of privacy, since Article 8 of the European Convention on Human Rights, incorporated into UK law by Human Rights Act 1998 (HRA 1998) gives individuals a right to respect for private and family life and correspondence. And, of course, disgruntled staff might also complain to the ICO, which might prompt an investigation of your business.

CRITICAL

LEADING THROUGH Leadership: Leadership: crisis crisis

“A leader knows the way, goes the way and shows the way” by John C. Maxwell. How true of Volodymyr Zelenskyy’s leadership style following the abhorrent and entirely illegal invasion of Ukraine by Vladimir Putin and his Russian Army. Andy Moore discovers how HR can take cues from the inspirational and resilient leader Zelenskyy who has shown the world the greatest example of critical leadership and how to lead during a crisis.

When Ukraine President, Volodymyr Zelenskyy took office in May 2019, little did he know he would become one of the world’s most inspiring leaders during a time of crisis in recent years. Thrust into leading his country through the pandemic, less than three years later he had to rise to the challenge of dealing with another serious threat to his people and his nation, in Russia’s illegal war against his country.

In this short time, Zelenskyy has not only influenced his own people – but millions around the world through his courageous, resilient and confidence-building critical leadership.

Little needs emphasising about just how much HR professionals, business leaders and employees can learn from his leadership ethos in times of adversity, and in peace time too.

Critical leadership is pertinent to testing situations inside organisations – for example during times of redundancy, restructure and volatile economic trading.

Zelenskyy was quick to lock down his country in early 2020, showing his true colours as a quick-thinking, decisive and pragmatic leader – all key attributes that translate to the workplace.

In one of his first speeches to his nation during the war, he declared: “This is not the first threat that the strong Ukrainian people have faced. Two years ago, we, like the rest of the world, looked confused in the eyes of the pandemic. However, we united and with clear systemic steps, defeated it.” HR and leaders must be “on the level” with their employees in times of crisis. Zelenskyy’s frequent video speeches to his country and the world demonstrates just how vital it is to lead from the front; his dress code of military fatigues, rather than ‘politician’ suit and tie, prove how committed he is to being a man of his people.

Barbara Bell, a leadership professor at Vanderbilt University was quoted in Forbes business magazine as saying: “Zelenskyy is showing the world leadership lessons. He is drawing from well deep within himself, showing the entire world what courage and commitment look like as he leads his country through a crisis like no other.”

Part of being personable to people is down to his critical leadership ethos – more the “stand-up guy” - who started his career as an actor and a comedian – starring in a popular Ukrainian TV show, aptly called “Servant of the People.”

The president’s clear and present leadership style can be seen as an inspiration to HR practitioners and business leaders across UK workplaces.

Effective communication in adverse times, as well in times of peace, is vital to inspire and motivate colleagues. Zelenskyy has remained clear and unambiguous throughout the conflict, and most Ukrainians find him incredibly honest.

Dr Robert Coles, CEO at Roffey Park Institute, who has commented on Critical Thinking in Hr NETWORK Magazine, said: “We live in an age of information overload. The learning of course is there is a world of difference between having access to information and being informed. The difference is the judgement and criticality we bring to the information to which we are exposed.”

More than 90% of Ukrainians have thrown their support behind their president as the country continues to resist Russia’s invasion, according to a Ratings Sociological Group poll.

Dr Coles adds: “The criminal invasion and destruction of Ukraine has been born, in part, from lazy assumptions and self-seeking confirmation of biases on all sides. One positive outcome from it must be that we wake up our critical judgement and see through ‘information’ in a thorough search for truths through which we can all flourish in peace.”

Dr Coles infers that CEO’s and HR practitioners can learn to be critical thinkers to ensure teams are informed, motivated and reassured in times of crisis. With workforces now remote and in far-flung locations, a crucial part of leadership is instilling a sense of presenteeism. Zelenskyy’s regular video speeches to his nation, and to the world, demonstrate that he is in sight and in mind as opposed to being out of sight and out of mind.

But being an omnipresent leader is not just restricted to the immediate people in your workplace: leaders of large organisations with customers, suppliers and partners all over the world must communicate to an even larger global audience.

Zelenskyy has demonstrated this virtue, virtually to the world on more than one occasion, and even in a translated speech to MPs and peers in the House of Commons where he received a standing ovation.

Resilience is a critical leadership quality in times of adversity. There is no doubt Zelenskyy’s leadership gravitas has generated the support amongst western and worldwide countries during this crisis.

Rick Cudworth, a Partner at Deloitte, summed up by saying: “Dealing with complex events requires flexibility and creativity; dealing with future uncertainty requires the ability to change course and adapt rapidly. A fundamental change in thinking requires senior leaders to make strategic choices, balancing control, agility, efficiency and innovation.”

Strength in leadership

• HR and leaders must be “on the level” with their employees in times of crisis

• Being personable equals an influential leadership ethos

• A clear and present leadership style is vital to HR

• Effective communication in adverse times and in times of peace inspires and motivates colleagues

• More than 90% of Ukrainians support their president

• CEO’s and HR practitioners can learn to be critical thinkers

• A crucial part of leadership is instilling a sense or presenteeism

• Being an omnipresent leader extends beyond colleagues to global customers, suppliers and partners