New rules for workplace monitoring?

The Government is consulting on whether further regulation is needed to govern the use of workplace monitoring technologies (WMT), including AI-driven monitoring, algorithmic management systems, productivity monitoring tools, location tracking, biometric systems and automated decision-making. The consultation forms part of the Government’s wider Make Work Pay commitment that the introduction of workplace surveillance technologies should be subject to consultation and negotiation with trade unions or employee representatives.

Current position

The Government acknowledges that existing legal protections already apply to workplace monitoring, including data protection law, equality law, employment law, human rights law and health and safety legislation. However, it considers that employers do not always understand or apply these requirements consistently, creating risks around transparency, fairness, worker trust and accountability.

The consultation emphasises that monitoring technologies can increase productivity, improve regulatory compliance and enhance security, but may also create risks relating to privacy, bias, wellbeing, excessive surveillance and unfair decision-making.

Proposed principles for responsible use

The Government proposes eight principles that should underpin the use of workplace monitoring technologies:

• Clear purpose and rationale.
• Transparency and worker understanding.
• Worker engagement and voice.
• Fairness and equality.
• Necessity, proportionality and privacy.
• Human oversight and accountability.
• Protection of dignity and wellbeing.
• Ongoing accuracy, reliability and review.

The consultation seeks views on whether these principles accurately reflect good practice and whether they should underpin future regulation. It also seeks views on three potential interventions:

Option A – Statutory Code of Practice

The Government could introduce a statutory Code of Practice on workplace monitoring technologies. The Code would not create new legal obligations but would set out expected standards of behaviour and good practice. Employment tribunals may have to take compliance with the Code into account when considering claims such as unfair dismissal or discrimination.

Where a tribunal found that an employer had unreasonably failed to follow the Code, compensation could potentially be adjusted by up to 25%.

The Code would likely be supported by detailed non-statutory guidance covering matters such as consultation, privacy, human oversight, data protection and ongoing reviews.

Option B – New statutory consultation and negotiation duty

The most significant proposal is a new legal requirement for employers to consult and negotiate with recognised trade unions or elected employee representatives before introducing or substantially changing workplace monitoring technologies.

The duty would be intended to ensure that workers have a meaningful opportunity to influence how monitoring technologies are introduced and used. The process would not necessarily require agreement to be reached but would require employers to engage in genuine consultation.

The consultation explores:

• which technologies should trigger consultation
• whether consultation should apply only to high-risk monitoring systems
• whether the obligation should extend beyond employees to workers
• appropriate time limits and enforcement mechanisms
• potential remedies, including protective awards, compensation or delaying implementation until consultation is completed.

Option C – Non-statutory guidance

The lightest-touch option would be the publication of government guidance explaining good practice and existing legal obligations. The guidance could include sector-specific examples, case studies and toolkits for employers.

The Government recognises that this option would be more flexible and easier to update but may have limited impact because compliance would be voluntary.

Next steps

The consultation closes on 30 September 2026. The Government will then analyse responses and publish its formal response setting out whether any intervention will be taken forward and, if so, which model it intends to pursue and the timeframe for implementation.

The Birketts view

The consultation reflects government concerns about the increasing use of AI and monitoring technologies in workplace management. While the eventual outcome remains uncertain, employers should expect greater emphasis on worker consultation, transparency and accountability when introducing technologies that monitor employees or influence employment decisions.

The most significant potential future development is a statutory duty to consult employees or their representatives before introducing certain monitoring technologies. This would represent a substantial change for many employers, particularly those that currently deploy such systems without formal workforce consultation.