The legal issues facing UK businesses from wearable technology

It is inevitable that wearable technology will be used more frequently in the workplace - but what are the legal considerations?

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It is inevitable that wearable technology will be used more frequently in the workplace and its use will have a number of advantages to UK businesses. For instance, Goldsmiths, University of London reported that wearable technologies were found to boost employee productivity by up to 8.5%. 

However, UK businesses are also likely to have concerns about the challenges they may face by allowing staff to use wearable technology at work and will need to assess their legal obligations and also the practical considerations in respect of wearables being used in the workplace. 

One concern with wearable technology is that individuals are likely to find it easier to record information on a wearable device without being detected. Therefore, businesses face the risk of individuals recording confidential information about the finances or affairs of the business or intellectual property relatively easily, with the business subsequently losing control over what happens to that information.   

Even if individuals have consent to store such information on their wearable devices, it may end up in the wrong hands in any event if the individual fails to adequately protect such information with suitably robust security measures such as passwords and encryption, since security control will rest with the individual and not the business.

Recordings could also be made of conversations or during events such as disciplinary hearings which employees could then seek to rely on in legal proceedings. While the admissibility of covert recordings continues to be challenged there is still a risk that such information could be admissible in court/tribunal proceedings if it is considered to be in the interests of justice.

Privacy considerations

UK businesses will also need to consider privacy issues. Companies embracing the use of wearable technology, for instance to enhance customer service, are likely to reap the rewards. However, such action is likely to result in the collation of personal data which will need to be handled carefully. Staff may also raise concerns about their privacy being breached, where for instance colleagues start to record things that happen at work, and employers will need to be prepared to alleviate and/or deal with these concerns. 

Unsurprisingly, the Information Commissioner’s Office has reminded people that the use of wearable technology is subject to the Data Protection Act and other applicable laws. However, it will inevitably be difficult for UK businesses to comply with their legal obligations when they aren’t aware that individuals within their business are collecting and processing personal information including sensitive personal data.

Unfortunately, businesses are likely to have their hands tied to some extent in dealing with the risks mentioned above. While they could consider a complete ban on wearable technology, this is likely to be unpopular and difficult to enforce in practice. A complete ban would also result in businesses missing out on the benefits which wearable tech can bring to their business. 

Therefore, the best solution is for UK businesses to ensure they have a clear strategy in relation to the use of wearable technology. This will require an assessment of the individual risks posed to the business and will require cross involvement from a number of teams, including management, HR, legal and IT. 

This strategy should then be communicated through the use of policies explaining what staff can and can’t do. Useful policies to have in place will include social media, bring your own device, data protection, use of technology and anti-harassment and bullying policies. Businesses should also update disciplinary policies to ensure that misuse of wearable technology is covered and that sanctions for misuse are clearly spelt out to staff. Effective and clear communication to staff of the dos and don’ts will be key to addressing the above risks and arguably may present businesses with a better chance of enforcing rules and sanctions associated with misuse of wearable technology.

Employment contracts

Contracts of employment should also be updated to ensure protection of confidential information and intellectual property. Considerations about working time will also be required as wearable technology will allow staff to check emails more easily and frequently and could result in staff working in excess of the 48-hour limit on the working week. Businesses should monitor the situation and consider whether to discuss concerns with staff to see if they are agreeable to opting out of the limit - however, such an action has to be their choice and made without duress. Alternatively, businesses may need to consider imposing guidelines about working time.

It does appear that wearable technology is here to stay and the use of it will no doubt become second nature to individuals. However, to reap the benefits businesses should assess the individual risks to their organisation and take proactive action now while wearable tech is still on the rise, to minimise a fall-out later on.

Sarah Burke (pictured) is a solicitor at law firm Thomas Eggar.

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