Organisations must manage the legal risks of using interactive gadgets in people management
Electronic gadgets designed to be worn are rapidly growing in popularity, with a recent report predicting that the global wearable technology market will be worth $71.23bn by 2021, compared to just under $30bn today. While not yet as common as smartphones, gadgets such as ‘smart’ glasses (Google Glass has been discontinued, but Apple are working on a replacement), the Apple watch, the Fitbit and many others could soon have a massive impact on our workplaces and working habits.
These emerging technologies enable employers to gather ever more precise data on employees. Wearable devices can, for example, be used to provide accurate location data or information about employee time management. Interactive wearable technology could conceivably be used in recruiting and interviewing, with key colleagues able to observe an interview through the interviewer's smart glasses recording and send messages to drive the interview remotely. It could even help the interviewer by providing tailored follow-up questions in response to the candidate's answers.
However, employers will have to ensure that such uses of wearable technology comply with data protection and privacy laws. In May 2018 – when the UK is still likely to be a member of the European Union – the General Data Protection Regulation comes into force. This will require employers to provide additional information to individual employees about how their data will be used. The requirements for obtaining the consent of individuals will also be significantly tightened.
Wearable technology could present other serious and costly challenges to employers. In particular, using the technology to store or copy confidential data carries security risks if wearable devices are linked to insecure wi-fi connections or websites vulnerable to hackers. These devices could be used for corporate espionage, without the knowledge of individual employees. Another risk is that employees might deliberately use wearable technology to gather confidential data and pass it on to competitors, to covertly record meetings, or to intimidate and bully colleagues.
So how can organisations protect themselves? An outright ban on wearable technology may seem the easiest, quickest and most cost-effective solution. However, this could mean employers miss out on the potential benefits of the technology, as well as being unpopular with employees and hard to police.
If employers decide to allow employees to use the technology in the workplace, they will need to have clear policies, particularly in terms of data protection and security. Policies should also cover:
- When the technology can and can’t be used in the workplace
- What will amount to bullying and harassment by device users
- How any breaches will be monitored and dealt with
All of these issues could be addressed within an existing workplace'bring your own device' (BYOD) policies.
With wearable technologies developing rapidly, any policies covering their use can soon be out of date, so it would be prudent to review and future-proof them periodically. Employment contracts should also be drafted carefully to protect confidential information, both during employment and afterwards. This is particularly important when it comes to senior staff or those with access to highly sensitive information. Contracts should also back up other policies by clearly stating that disciplinary action will be taken if company policies (such as BYOD) are not followed, which in serious cases could amount to gross misconduct.
As the technology becomes more common, it may become necessary to introduce a separate policy setting out who owns the data (even if stored on the employee's own device), and the processes the employee is able to perform on that data. Employers should set out employees’ responsibility for security risks and for safeguarding devices and their data.
However, policies in isolation are often not enough, so employers should ensure that managers are trained on their implementation, and all employees receive clear, unequivocal advice as to what is acceptable and unacceptable use of wearable technology. Employers may also want to consider whether they wish to permit the recording of disciplinary or grievance meetings and, if not, whether and how this should be communicated to employees.
The days of everyone wearing glasses projecting reams of data before their eyes may seem far in the future, but wearable technology could revolutionise the way we work –
and employers need to ensure they are ready.
Jon Belcher is a senior solicitor specialising in data protection, and Charlotte Marshall is a trainee solicitor in the employment law team at Blake Morgan LLP
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