Despite the vast increase in technology available to the modern workplace, productivity is not increasing. This is partly because today’s employee is ‘always on’ with advances in technology blurring the line between work and home – so much so that 40 per cent of people check their work email five times each day outside of work hours.

Concerned for the health of employees, some businesses are turning to wearables to track staff wellbeing and productivity levels in the workplace. For example, staff at LinkedIn used respiration wearable Spire, a clip-on respiratory tracking device, to help reduce stress and improve productivity. The device is accompanied by alerts and guidance on how to control emotions and stress through breathing exercises.

However, many potential issues arise with collecting and storing such data – any employer considering adopting wearables must reflect carefully on a number of factors before any rollout of the devices, including (but not limited to) important matters of data protection, possible breach of trust and confidence or even accusations of discrimination. Furthermore, transparency and communication with employees is crucial, as they must know employers’ intentions behind the collection of personal and potentially sensitive data.

See also: Top tips on creating an enterprise risk strategy for wearables

Data protection

When introducing wearables into the workplace, employers need to give careful thought to their obligations under data protection laws. Depending on how the data is collated, what access the employer has to the data, and how far the employer goes in drilling down into the data, it may be possible to make the case that the data is anonymised. If no personal data is identifiable, the data protection regime may not “bite.”

But employers should be cautious. On closer inspection, particular employees or even small groups of staff may be personally identifiable from the data – for example by combining various datasets to build up a profile of an individual or small group. If so, this could put the employer at risk of legal action under data protection law. To mitigate this risk, employers should:

• Ask for employees’ consent to the processing of the data (particularly if it involves sensitive personal data)
• Explain clearly to employees what personal data is being collected, used and disclosed, and the employer’s intended purpose for the data – as well as exactly how data will be collected, used and disclosed
• Ensure that the data is held securely and that appropriate training is given to any staff with access to the data
• Not use the data for purposes outside of the employer’s stated objectives, and put the required measures in place to ensure that all use is appropriate.

Employers should ensure that wearables do not track location or voice data outside of working hours, to avoid the unnecessary collection of irrelevant data. For example, such trackers might tell an employer which employees attended a trade union meeting or what was said at the meeting, all of which is sensitive personal data. Collection of this data therefore poses a risk to any employer gathering such information (even unknowingly).

See also: Employee data and GDPR – what you need to know

By hiring third party providers to collect and maintain the data, employers can avoid some of these issues because they only receive the data once it has been amalgamated and anonymised. However, they still have a duty to ensure that the appointed third party complies with its data protection obligations.

Breach of trust and confidence or discrimination

Data collected from wearables should not be expected to replace human knowledge or experience, and should only be used to add detail or provide context in appropriate circumstances. It would be a recipe for disaster should, for example, businesses choose to use productivity data alone to justify pay rises or promotions, or even termination of an employment contract.

Rather, employers should sense-check whether productivity issues flagged by data from wearables could be the result of other non-performance-related factors, such as disability. In particular, collection of – and access to – this data may lead to an employee being able to show that the employer ought to have known their personal condition, thereby making the employer liable for any discrimination which can be proved.

In addition to any regulatory or discrimination concerns when adopting wearables, employers should be respectful of employees’ privacy. For example, wearables, which measure an employee’s emotions on a day-to-day basis, are likely to be seen as particularly invasive and controversial. For such reasons, to-date most employers have used the optional route to encourage the use of wearables in the workplace. Mandatory use would likely undermine employee morale, affecting the mutual trust which should exist between employer and employee.

Kathryn Dooks is employment partner at technology specialist law firm, Kemp Little.