Excellent experience start to finish – always very responsive to any queries and the turnaround on the property I was buying was very quick, even in the busy time leading up to stamp duty deadline. Jenny was always very helpful and went above and beyond to close on a short timescale.
Shiva Shadi – Head of Employment – on the trend of “Mouse Jigglers” in the US and what UK companies need to know.
Employees trying to falsely give their employers the impression that they are present and working is not a new phenomenon. When I started my career, it was blazer jackets on the back of seats and computers logged on to demonstrate that an individual was working elsewhere in the building, when – in fact – they were working hard, but in the local gym in the morning before returning to the office!
Employees have come up with new and more inventive ways over the years and certainly in pandemic there were plenty of Zoom meeting cameras turned off with employees fast asleep or doing housework!
“Mouse Jigglers” Impact on the Workplace
Whilst “mouse jigglers” and similar devices have been around for a while they have become far more popular with the increase in hybrid working. So much so that Wells Fargo, a leading American Bank, reportedly fired more than a dozen employees after they were found to be using such devices. Whilst Wells Fargo has reportedly explained that it was as a result of them not tolerating “unethical behavior”, in the UK there are implied terms written into contracts of employment which can assist employers in dealing with similar situations.
For those of you, like me, who aren’t au fait with “mouse jigglers” they are designed to keep employees’ laptops or desktop computers appear in an active mode by moving the cursor automatically every few seconds and therefore preventing the devices from going into an “idle” state or registering as “inactive”.
Whilst there is an argument for some legitimate use, such as if employees are reading lengthy printed documents which doesn’t involve typing and still want to record their time correctly, more often than not, they are used to cover extra breaks and time away during working hours.
Employees, however, have an implied duty to render faithful service. So, there is an implied term within all employee/ employer contracts and relationships that the employee should serve the employer faithfully and not act in a way that is contrary to the interests of the employer.
Breach of Trust and Your Contract of Employment
There is also a duty not to breach trust and confidence that should exist between an employee and an employer. Contracts of Employment also expressly stipulate the working hours of employees and the Working Time Regulations set out minimum break requirements.
It is easy to see how a breach arises when employees consistently use such devices during working hours in order to undertake tasks unrelated to their work. Such misuse of company time would certainly be a disciplinary matter.
The use of these types of devices in the pretense of working is no different from employees surfing the internet or social media sites instead of working. Therefore, subject to specific facts of each case, a dismissal for consistent use of ‘mouse jigglers’ could be held to be entirely fair.
However, there is question as to the expectations of an employer and whether the expectation that employees are required to sit at a laptop or a computer for eight hours and do nothing but type, calls into the question unrealistic expectations and whether employees using “mouse jigglers” is an indication that they are overworked or their employer’s expectations are unsustainable leading them to using such devices.
There are steps that employers can take to address the use of such devices. For example:
- Inform employees that devices and apps that control their mouse input are banned. Whilst this should be set out in Company Polices you must ensure that it is also actually brought to the employees’ attention and something that they are aware of.
- Clearly set out the consequences if employees are found to be using them. Include this as an express breach within your Disciplinary Rules and Procedures.
- Inform employees that you may monitor their devices from time to time to check whether apps or other foreign devices have been installed. As with all employer monitoring systems, employees should be made aware of this in advance and GDPR requirements should be met.
- Some companies have introduced set response times to messages, video calls and chat apps which can easily illustrate whether an employee is engaged in their work and working at their laptop/ computer. However, these should not be unrealistic timeframes.
- Ultimately employers can install their own tracking software to detect the use of such devices.
- Finally, carry out regular checks on the organisation’s systems for new software installations or unknown devices.
Employers should also be cautious about using new AI technology to monitor employees as it takes away the human element. For example, a manager can be aware that an employee is having a difficult day and therefore take their productivity into account, whereas AI software can’t do the same. As always, all steps taken by employers should be proportionate.
If you would like to contact Shiva Shadi, Head of the Employment Department, please call 0161 832 3304.
