As the number of businesses using wearable technology to monitor staff rises, global law firm Clyde & Co has warned that the growth of this practice could be a ‘double-edged sword’ for employers. Contributor Chris Murray, Insurance Partner – Clyde & Co.
The growing volume of data on employee performance and health held by employers could be subject to full disclosure during a legal action against the business. It can be compared to footage from CCTV or telematics data, which is already being used in court.
Chris Murray, insurance partner at Clyde & Co, said: “The rapid rise in the use of monitoring and wearable technology by employers has many benefits. It allows a business to really understand staff behaviour and performance. But it could also play a major role in legal actions.
“Imagine a situation in which a nightclub customer slips on a wet floor and cuts their leg badly on broken glass. They may claim against the nightclub on the grounds that it failed to operate a proper system of inspection and cleaning. The nightclub can use data captured from a wearable device to prove its employee was working in that area of the club and did indeed clear the floor. But equally, there’s the risk the claimant could use the club’s own data to prove that employees were not doing their job properly.”
“Wearable tech and monitoring devices produce data, which in turn can be used as evidence. They represent a double-edged sword for employers. The rules that apply to any evidence apply in just the same way to wearable tech data. Suddenly, employers will find themselves with access to a new dimension of data on their operations. The implications of that have yet to be thought through.”
In 2016, in the United States FitBit worked with 70 major companies within the Fortune 500 and 1,300 other businesses to launch schemes in which its wearable devices were used by employees to monitor their health and wellbeing.
Chris Murray noted that this raised the question of whether data from employees’ personal devices such as Fitbits could be disclosed in a claim. He said: “There’s nothing to prevent an employee bringing some sort of device capable of monitoring their activity into the workplace. Data from a Fitbit was first introduced into court in Canada back in 2014, so these devices will feature in legal actions.”
A recent study by US firm Grand View Research showed that the global workforce analytics market is currently growing at 16 percent compound annual growth rate, and is expected to reach £1.9bn by 2025, The HR technology industry is growing at 8 percent annually and expected to be $15bn in size in 2018 (IDC, Forrester, from Shea & Company 2015).
Clyde & Co’s James Major, a partner in the employment team, noted that employees are increasingly using these technologies to record events to later use against their employers or colleagues. He cited instances in which employees have recorded their interactions with their employer and even occasions where they have left phones or recording devices in rooms to record private discussions.
He said: “We’ve been involved in several cases in which employees have used phones to surreptitiously record interactions with other staff and management, and then use these recordings as evidence in support of their claim. Some employees, when asked to leave the room during a formal hearing, have even deliberately left their jacket or bag behind with a recording device in it.”
“Given that our experience tells us that employees are very conscious, often nervous, about how employers monitor them, organisations need to think very carefully about how they use and store data collected from wearable technology. They also need to consider the process by which they introduce it. For example, should they consult their employees?”
The issue of employee monitoring data is being thrown into sharp relief by the arrival of the new Data Protection Act in May 2018. Employers will have to justify the need for their collection and retention of any personal data, which would include data collected from wearable technology provided by the employer. Employers, he said, may have ‘some difficulty’ in justifying that it is necessary to collect and retain all of the data produced by such technologies.
