Workplace Monitoring Technologies Consultation
The latest Make Work Pay consultation has been launched this week and seeks views on what further steps government should take in relation to the introduction and adaptation of Workplace Monitoring Technologies (WMT).
The consultation notes that there is some existing legislation which sets out rights and obligations in certain cases. However, a marked increase in the use of these technologies is pointed to as rationale for more to be done. The government puts forward three options, whilst noting that, depending on the responses, there could also be no further action taken.
Despite initial plans for Option A to be presented as the lead proposal, the consultation expresses no preference on which option the government prefers.
The three options in the consultation for further action are as follows:
Option A: Statutory Code of Practice with accompanying guidance
This option would introduce a Code which could be referred to during employment tribunals. In a sense, this provides a new legal obligation for employers to follow steps set out in the Code when introducing or updating the use of WMT. In practice, the Code could only be referred to in cases brought to tribunal for other reasons, such as unfair dismissal or discrimination. This would also be supported by further non-statutory guidance which would provide further information and context for employers and employees.
Option B: Legislative requirement to consult and negotiate
This option would introduce a more significant legal obligation for employers to consult and negotiate with trade unions or elected representatives when they are introducing (and potentially updating or changing the purpose of) WMT. This requirement could be set at various levels of stringency, but is focused on elevating the employer voice in decisions around these technologies. It would be the most burdensome for employers to introduce, and there is a lack of clarity over what the threshold would be for a requirement to consult, given that the use and capabilities of these technologies can evolve and adapt at a rapid pace.
C. Non-statutory guidance
The final option would avoid the introduction of any new legally binding Codes or legislation, instead opting for non-statutory guidance which sets out principles and points to consider for employers and employees. Whilst this has the benefit of being able to adapt to evolving technologies to a greater extent than a legally binding Code, there would be no obligation to follow the guidance, so there would be little incentive for rogue employers to change their approach.
The consultation runs for 12 weeks, closing on 30th September.
BRC has been engaging with government on these proposals since Summer 2025 and is looking to respond to the consultation.
We will be seeking member views over the coming weeks. Initially, please let Ben know if you are interested in feeding into a BRC response.
