Following a recent case where a remote worker was fined for ‘time theft’, we look at what it is, the legal and ethical aspects, and how it relates to employee monitoring software.
What Is Time Theft?
‘Time theft’ refers to any instance in which an employee is paid for time they did not actually work. This can include activities such as arriving late or leaving early, taking extended breaks, or using company time for personal activities. Additionally, employees who falsify time records, or who do not accurately report the time they have worked, can also be guilty of time theft. It's important to note that these actions are not only unethical, but also illegal, and can result in disciplinary action, including fines or termination of employment.
The penalties for time theft can vary depending on the company's policies and the severity of the infraction and can range from verbal or written warnings to fines or termination of employment.
Recent Case In The News
A recent case where a remote working employee was fined for ‘time theft’ following the use of staff monitoring software by their employers has sparked debate about the subject. Canadian, British Columbia-based accountant, Carlee Besse, who worked remotely for Reach CPA, was dismissed, and ordered by civil tribunal to pay Reach CPA £1,691 for a form of misconduct known as ‘time theft’. In Ms Besse’s case, it referred to 50 hours on her timesheets that she "did not appear to have spent on work-related tasks". The discrepancy in the hours recorded and those worked were recorded by TimeCamp staff-tracking software that had been put on her work laptop following the commencement of weekly performance meetings with her manager.
Proportionate
Miss Besse lost her case despite claiming that:
- She had found the software difficult to use.
- She couldn’t make the software differentiate between work and personal use.
- She’d spent a great deal of time working with paper copies of client documents that weren’t captured by TimeCamp (which TimeCamp was able to disprove).
- Taking Reach CPA to court for wrongful termination seeking £3,066 compensation for unpaid wages and severance.
Claims Thrown Out And Fined
The judge threw out her claims for wrongful termination and compensation and ordered that she pay the fine for ‘time theft’ in returned wages and part of a previous advance she had received. Tribunal member Megan Stewart was reported as finding that Reach, which was able to submit TimeCamp videos to back its case, had proved that Ms Besse had engaged in ‘time theft,’ describing it as "a very serious form of misconduct". Megan Stewart is also reported as saying about the case: "Given that trust and honesty are essential to an employment relationship, particularly in a remote-work environment where direct supervision is absent, I find Miss Besse's misconduct led to an irreparable breakdown in her employment relationship with Reach and that dismissal was proportionate in the circumstances."
What Does UK Law Say About ‘Time Theft’ Fines?
Although the example case shown above was in Canada, in the United Kingdom, fining employees for ‘time theft’ is also legal as long as it is done in accordance with the company's policies and procedures, and with relevant employment laws.
The main employment law that relates to ‘time theft’ is the Working Time Regulations 1998 (WTR). The WTR sets out the rights of employees in relation to working time, including maximum working hours, rest breaks and annual leave. Under the worker safety aspects of WTR, employers have a legal duty to ensure that employees do not work more than 48 hours per week on average, which includes overtime. In order to do so, employers are also required to keep accurate records of the hours worked by their employees and to ensure that employees take the rest breaks to which they are entitled. Employers who fail to comply with these requirements may be subject to penalties, fines, or legal action.
However, in addition, an employer has a right to discipline an employee for misconduct, if the employee is not following the company's rules and policies. This can include disciplinary action for ‘time theft’, as long as the employer can demonstrate that the employee has committed an offence, and the disciplinary action is proportionate and fair.
It is important to note that employees also have rights to appeal against any disciplinary action taken against them, and they can raise a grievance or make a claim to an employment tribunal if they believe that they have been treated unfairly, as Ms Besse argued in the recent case in Canada.
Is It Ethical And What Are The Issues?
The ethics of fining people for time theft can be a complex and nuanced issue. Some argue that fining employees for time theft is a necessary measure to ensure that employees are held accountable for their actions and that the company's resources are being used effectively. Others argue that fining employees for time theft may be seen as too harsh a punishment, particularly if the infraction is relatively minor or if the employee had a valid reason for their actions. Other ethical issues around fining employees for time theft include:
- It can create a negative and adversarial relationship between employees and employers, which can lead to a toxic work environment. This can result in increased employee turnover, decreased productivity, and lower employee morale.
- It may disproportionately affect low-income employees or those who are struggling financially. This can result in a situation where employees are less likely to report time theft, for fear of being fined or losing their job.
- It can also be seen as a symptom of a larger problem, such as a lack of trust or communication between employees and employers, or a lack of clear policies and procedures. In these cases, addressing the underlying problem may be a more effective solution than fining employees for time theft.
Each Case Is Different
It's important to remember that each case is different and that the action taken, including fining, should be proportionate to the offence and considerate of the employee's personal circumstances. Employers should also explore all possible options before taking disciplinary action and consider the potential consequences of the action.
Staff Monitoring Software
In this case, it was the use of TimeCamp monitoring software that enabled Reach CPA to gather the evidence and to sack and fine the employee, and protect the company from her compensation claim. The use of staff/employee surveillance/monitoring software had a huge boost during the pandemic as a way of tracking productivity, attendance, and compliance with company policies.
Monitoring Up
Back in November 2021, a Prospect trade union poll revealed that 32 per cent of UK workers were being remotely monitored and tracked by employers. The poll (conducted by Opinium on behalf of Prospect) showed that young workers (18 to 34) are particularly at risk of a higher rate of monitoring. The poll showed that 48 per cent of younger workers reported being monitored at work, including 20 per cent being monitored using cameras. The poll also showed that the number of employees under remote surveillance had risen by 8 per cent (from 24 per cent) in just 6 months and that there’d been a doubling of the usage of camera monitoring in people’s homes.
It is thought that half of large corporations now use that use staff monitoring software although this varies depending on the industry and size of the company. It is, however, becoming more common as technology has advanced and it becomes more affordable for companies to implement. It's not uncommon anyway to see monitoring software used in call centres, financial institutions, retail, and other industries where productivity and compliance are important.
What’s Being Monitored?
The kinds of metrics and details that employee monitoring software can highlight are:
– Taking sample screenshots/recording screens.
– Whether employees are active/inactive during working hours.
– How much time is spent on the Internet, plus whether games are being played or social media accessed too much.
– Whether employees are using work devices for work or private purposes.
Is Employee Monitoring Legal?
Data protection (the data gathered about individual employees), and privacy are the key concerns where there is currently legal protection related to monitoring employees with software and cameras. Relevant laws include Article 8 of the European Convention on Human Rights whereby individuals have a non-absolute right to respect for their private and family life and correspondence, and (UK) GDPR. Under GDPR, data needs to be processed lawfully, fairly, and transparently as well as being collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Also, monitoring data must be adequate, relevant, and limited to what is necessary for those purposes.
The guidance from ACAS is that although employers can monitor employees, workers are entitled to some privacy at work and employers must tell employees about any monitoring arrangements and the reason for it. Employers should have procedures in place setting out what is and what isn’t allowed, and these procedures should be made clear and understood by all workers before monitoring begins. Generally, employers must have a genuine reason to conduct covert monitoring such as criminal activities or malpractice, and any monitoring should be limited, targeted and within certain times, and employers should also have regard for private communications.
Is It Ethical To Use Employee Monitoring Software?
There are several ethical concerns about using employee monitoring software. Some of the main concerns include:
- Privacy. Monitoring software can track and record employee's actions, including emails, chats, and keystrokes, which can be seen as an invasion of privacy.
- Trust. Employees may feel that their employer doesn't trust them if they are being constantly monitored. This can lead to low morale and decreased job satisfaction.
- Discrimination. Monitoring software could be used to discriminate against certain employees, such as those who take more breaks or have different working styles.
- Productivity. Over-monitoring employees can lead to burnout and decreased productivity as employees feel like they are constantly being watched and judged.
What Does This Mean Your Business?
The remote working of the pandemic and the fact that employee monitoring software is now widely available, generally affordable, and relatively reliable have boosted deman and use by employers. Many workplaces are monitored anyway by other means e.g., cameras. The key points of this particular case are that companies can legitimately and legally use employee monitoring software as long as reasons, policies, and procedures for its use are made clear and understood by all workers before monitoring begins. In this case the reason was for monthly productivity meetings. This case also highlights the importance of two-way trust in the work relationship, and that there are ethical, legal, and cultural aspects to employee monitoring, not least privacy, that employers and employees need to be aware of. It may be interesting for many people to discover that there is an area of misconduct called ‘time theft’ that can result in dismissal and fines but that it depends very much on the situation and the business how this issue is addressed. This story also highlights how many serious aspects of our lives can now be governed by algorithms software e.g., AI being used employment application screening or, as in this case, gathering evidence for reward or punishment by employers. This is a trend that is only set to continue although transparency, clarity from the outset, good old-fashioned management skills and striking the right balance are also important in creating the right working conditions where employee satisfaction and productivity are maximised.