Big Bother?: Can employers use wearable tech to spy on workers?

With the advent of wearable tech into the market, Hugh Hitchcock, director of DJM Solicitors, provides the legal lowdown on offering wearable tech to staff and who owns employees’ fitness data.

The wearable technology sector is growing at a rapid pace. Research from the IDC shows 45.7 million wearable tech units will be sold in 2015, up 133% since 2014*. Wearable fitness-related technology is driving this growth, with Fitbit, Jawbone Up, and Nike FuelBand trackers at the forefront.

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While many of these fitness trackers are used for tracking location and speed, more sophisticated devices can perform a wider variety of functions; from detecting movement, heart rate, and body temperature, to monitoring breathing and sleep patterns.

Employers are jumping on this trend by providing wearable tech to employees as an ‘incentive’. While FitBits are being promoted as a way to help workers increase their activity levels, the advantage to bosses is obvious – more active staff are happier and healthier. Research shows that healthier staff take less sick leave and are more productive. In fact, a study by Goldsmiths, University of London, found that introducing wearable tech into the workplace boosts productivity by 8.5%.

While plenty of companies are embracing this technology to benefit their workforce, a few companies are generating bad publicity by using it to ‘spy’ on employees. For example, wearable tech has already been used by one London hedge fund to track their traders and find out whether poor sleep patterns and alcohol intake correlates with risk-taking behaviour.

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Other firms such as Tesco have used them to direct employees around their warehouses, and NHS trusts are asking staff to wear trackers to encourage them to lead healthier lifestyles. And it’s not just businesses; health insurance companies are encouraging corporate policyholders to ask staff to wear trackers in order to reduce their premiums.

Chris Brauer, a senior lecturer at Goldsmiths, University of London, who experiments with wearable tech in the workplace, has predicted a future where managers have dashboards that display real-time employee biometrics such as sleep quality and other leading indicators for performance.

While I find this image of bosses monitoring the workforce from their laptop screens hard to envisage, there is no doubt that the issue of wearable technology will be a growing area of concern for employees asked to wear them, and for bosses confused around what they can offer workers without landing in legal hot water.

A recent poll by PWC showed that four in ten British workers would be happy to wear a monitor to track their movements if the data were used to improve their working lives, and as might be expected, that support rises to 70% for those aged 18 to 34. However, 41% say they don’t trust their employer not to use the data against them in some way.

Due to the few companies who are abusing the technology, and unfortunately gaining the most publicity, if you decide to introduce wearable tech for your team it’s worth being prepared for some resistance and some tricky questions.

Introducing the technology

Before you even consider bringing this technology into the workplace, it is important to note that you cannot force an employee to wear a tracking device unless it’s written into an employment contract. Even then, there is no obligation to wear them outside of work hours.

Ownership of data

In terms of who owns the data generated by these devices, this depends on the employment contract.

Presently, we only have the example of technology such as company mobile phones and laptops to set a precedent over ‘company-owned’ personal data. A tracker is leased to an employee as an incentive much as a mobile phone might be, so employers are within their rights to claim ownership over the data generated as long as they make this clear in the employment contract.

The Data Protection Act

Of course, many employers won’t collect any fitness data, but it’s worth taking the necessary steps to comply with the law if you intend to look at this data at any stage.

In order to comply with the Data Protection Act 1998, employers must explicitly set out how they plan to use any gathered data and ensure there are appropriate security measures in place to protect it. In a nutshell, if you intend to capture and monitor data, you have to be explicit that you will do so and take steps to ensure the data is secure.

Moving forward

The key for employers who want to introduce trackers for whatever reason, is clear and early communication with staff. In order to win employee trust we recommend that any data gathered via trackers should be anonymised, and that you look at whole-workforce trends and improvements rather than individual performance.

And remember that however reasonable your reasons for offering wearable tech to your staff, they are within their rights to refuse, or to ask what you will do with the data before they make a decision about whether to strap up and step out. Be sure you’re prepared for any questions and have taken all the necessary steps to comply with the employment and data protection law governing this emerging area.

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