Legal

The rights and wrongs of employee surveillance

1 Oct 2018 By Joe Shelston

How closely is a business allowed to monitor its staff? Joe Shelston reports

Swedish company Epicenter caused a media storm in 2017 when it asked members of staff to have tiny radio frequency identification chips implanted into their hands to enable tracking.

This rather dystopian-sounding measure actually had some practical applications in the workplace. The chips allowed employees to interact with the office environment, opening doors and operating equipment. It also meant the company could gather data on staff movement and general working habits.

It’s an extreme example, but employee tracking technology is becoming more widely used by businesses that recognise the benefits it can have for increasing productivity, pre-warning of developing issues in the workplace and even improving engagement.

Recently, BP in North America issued more than 30,000 fitness trackers to employees to promote a healthy lifestyle. Amazon has a patent on a wristband that tracks the location of warehouse staff and alerts them when they are about to store an item in the wrong location. Under-pressure financial traders in Amsterdam have experimented with smart bracelets that monitor mood. The idea is that they would know if they were in a heightened emotional state, making them more likely to rethink rash decisions.

These are just some of the tactics that have been employed across the globe, all of which have obvious benefits for businesses and, in most cases, employees too. But the advantages of these technologies must be balanced against important ethical and legal considerations around closely monitoring human beings.

Negative attitudes

A report from the House of Commons Science and Technology Committee on the use of biometric technology found that public attitudes to the use of these systems were largely negative. The Big Brother effect is still strong, and many people see these measures as intrusive – built to keep staff in line rather than something that can benefit both businesses and employees alike.

With this in mind, an important consideration when looking at introducing some form of employee tracking is how this is communicated. Staff need to be educated about how the tech will benefit them. But external stakeholders, such as customers, also need to know that the business hasn’t crossed any ethical boundaries and that the technology will ultimately improve the product or service they receive. 

More important still is to ensure the technology used isn’t too invasive and doesn’t negatively impact employees unfairly. This is where the legal considerations around employee tracking come into play. 

The right to privacy, outlined in the Human Rights Act 1998, is key here. This law gives ‘effect to the rights and freedoms guaranteed’ in the European Convention on Human Rights (ECHR), so businesses in the UK may be forgiven for thinking the rules will loosen or change once the country leaves the EU. But the requirements are not linked to EU membership and the UK will remain signed up to the ECHR post-Brexit.  

The letter of the law is that 'everyone has the right to respect for their private and family life, their home and their correspondence'. This raises two requirements that need to be met by tracking technology.

To respect an employee’s private life, tracking technology must only play a role in the workplace and should not be able to track staff in their spare time. This could be an issue for a business looking to emulate Epicenter’s approach. Biometric tracking chips will need to have a built-in off switch that prevents them monitoring employees after they leave company premises.

Equally important is the law’s reference to ‘correspondence’. This may call into question whether employers should be freely viewing employee emails that are behind password-protected accounts. 

Monitoring email traffic is a popular method of tracking. It can highlight key working relationships and indicate influential people in the business who might help to achieve buy-in to company culture and new initiatives if engaged effectively.

The law isn’t black and white here but, to be on the safe side, email monitoring should probably be limited to tracking traffic rather than the content of messages.

What is clear is that we have entered a new era where privacy of the individual is valued above almost everything else. The recent introduction of GDPR is another stark reminder of this.

Businesses must take this into account when exploring tracking technology. The surest route to successful integration will be approaching it with a view to creating benefits for both business and employee. 

Joe Shelston is a partner at independent legal practice Brabners

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