News & Updates

WJM Employment Lawyer Advises Workplaces Over Monitoring of Workers After 'Mouse Movers' Sackings

Liam A Entwistle

Published byLiam A Entwistle

3rd July 2024

WJM Employment Lawyer Advises Workplaces Over Monitoring of Workers After 'Mouse Movers' Sackings

Liam Entwistle, employment law expert at Wright, Johnston & Mackenzie, has offered crucial advice to bosses on monitoring remote workers, amid a series of sackings being made at an American bank following claims staff used mouse moving gadgets to convince bosses they were working from home.

In light of the recent controversy surrounding Wells Fargo's dismissal of over a dozen employees for using ‘mouse jigglers’ to simulate activity, Liam has highlighted the importance of lawful and transparent employee monitoring.

It comes as the law firm reports a notable increase in cases involving employee monitoring, especially in the wake of widespread remote and hybrid working.

Liam said: “I'm seeing a rise in employees using artificial intelligence for a lot of things and using mechanisms to suggest that they're doing things when they're not.

"An employer can monitor employees in the workplace as long as they can justify it, and it has a lawful basis.

"They have to comply with relevant regulations such as the Information Commissioner's office (ICO) guidance. The purpose of the monitoring has to be lawful and clear, and they have to make sure that what they're doing has been subjected to assessment so it's not more intrusive than it needs to be for its purpose. An employer cannot just monitor staff all the time for the sake of it.”

A recent study from Forbes found that 43 per cent of employees have their online activity monitored by employees. The issue has reached such an extent that some are even using virtual private networks (VPNs) to circumvent surveillance practices.

Addressing the issue of pretending to work while you aren’t, Liam said that could actually be considered fraudulent, and certainly a breach of the implied term of trust and confidence.

He advised: "Monitoring for fraudulent activity, if done correctly, is perfectly legitimate. There's no doubt that if a monitoring system caught somebody and the evidence was reasonably compelling, then they could be dismissed for that.

“Pretending to work when you are not could be gross misconduct. However, catching a mouse jiggler can be challenging."

Liam explained that, while some employees have adopted tools to feign activity, one option for employers could be to focus on productivity and actual outputs rather than constant surveillance.

He cautioned against invasive measures like home surveillance, warning: “Setting up a camera in someone’s home would be highly intrusive unless there are extraordinary circumstances.”

Liam also provided a balanced perspective on employee efficiency, suggesting that employers could benefit from highly efficient workers.

He said: “If an employee can complete their work in a fraction of the expected time, employers should consider how else they might contribute to the business. Instead of feeling shortchanged, employers could engage such employees in additional business development activities.

“My advice is to look carefully at productivity and outputs. That might tell you more than other kinds of monitoring. If an employee is good at getting their work done efficiently and quickly, consider what else they could be doing for the business.”

The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at July 2024. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.