- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
- Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
- Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
- Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
- Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
- In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
- Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
- Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
- We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
- We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
- Our regulatory specialists work alongside Kemp Littles corporate and commercial professionals to help meet their compliance obligations.
- With a service that is commercial and responsive to our clients needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
- At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
- We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
- Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
- We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
- We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
- For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
- Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
- The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
- Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
- Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
- We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
- Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
- Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
- Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
- Kemp Little is trusted by some of the worlds leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
- HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
- FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they dont give away to get you started.
Wearables in the workplace
A recent report by Bersin by Deloitte has highlighted the trend of the “overwhelmed employee” – staff overwhelmed by the volume and always-on nature of messages and work-related activities. This is particularly prevalent in the Financial Services and Professional Services sectors.
Workplace productivity is not increasing despite a vast increase in the technology available in the modern workplace. Despite everything that my iPhone can do for me, I’m not any better or quicker at my job. Staff have too much information available to them and are flooded by it, meaning it leads to indecision and they can’t get their work done.
First this has led to a real concern for the wellbeing of staff, as the “always-on” culture blurs the boundaries between work and home life. But in addition, this has led to a real drive for productivity with employers increasingly focussing on employee engagement, wellbeing, monitoring the efficient deployment / use of resources (including staff) and monitoring the operation of processes and policies to ensure effective recruitment and retention. In particular, a big trend we are seeing in the USA is the use by employers of wearable technology to track employees’ wellbeing and productivity.
In the USA, the biggest driver for the use of wearables in the workplace is employers using fitness trackers as part of their (voluntary) corporate wellness programs, in order to obtain preferential terms on health insurance. It is said that by 2020 the use of wearables in the workplace could cut healthcare insurance costs by 40% in the US if employees wear a fitness tracker – a huge saving for employers.
Whilst there is less of an imperative for this in the UK because of the National Health Service, many Financial Services and Professional Services firms do provide employees with private medical insurance so this trend may well be adopted in the UK.
In addition to the voluntary corporate wellness programs, employers in the US are increasingly turning to wearables to track and measure productivity and this is where wearables become much more controversial, as you move away from their voluntary use in wellbeing programs. Some sectors, particularly those with large numbers of field staff, are well ahead of the game but increasingly Financial and Professional Services firms are adopting these technologies too.
Practical examples in the workplace
Staff at LinkedIn used respiration wearable Spire, a clip-on device, to help them reduce stress and improve productivity by providing them with a record of their respiratory patterns through the working day, accompanied by alerts and guidance on how to control emotions and stress through breathing exercises. In one study, 75% of the LinkedIn employees said that the device improved their productivity.
Humanyze undertakes voice-based analysis of staff via their ID/lapel badge. It monitors how an employee says something in order to measure interactions and emotions, for example in a customer service environment. It can help employers to track which groups of employees are regularly communicating with each other, the tone of voice, volume and movement to identify the engagement level in a conversation and to adjust work structures or environments accordingly. Bank of America used Humanyze to address productivity and turnover of call centre staff and identified that a lack of social engagement amongst team mates was driving a high turnover.
A London hedge fund used wearables to track traders, to find out whether poor sleep patterns and alcohol intake correlated with risk-taking behaviour. This helped the hedge fund to assess and manage risk within its organisation and to comply with its regulatory duties.
Essentia Analytics produces software for wearables to help professional investors optimise their decision-making through health improvements. They focus on how sleep and stress levels impact trading behaviour and demonstrate whether the individual makes better investment decisions after exercise or after a good night’s sleep.
It seems that the sectors which are most interested in this technology are those sectors which have trouble recruiting and retaining the best staff and companies with a high reliance on graduate trainees – which includes financial and professional services.
Legal considerations for employers
Employers who are considering adopting some of these new technologies have a number of key issues to work through.
In particular, employers need to give careful thought to their compliance with the Data Protection regime. In some cases, 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 say that the data is anonymised, that no personal data is identifiable and therefore the Data Protection regime will not “bite”.
But care should be taken in this regard as a particular employee or small group of employees may nonetheless be personally identifiable from the data if the employer drills down into the data. For example, if the data shows that a sales team’s levels of happiness have dropped in the last week and four new members of staff joined that team this week.
In the event that an individual is personally identifiable from the data, then the employer will need the employee’s consent to the processing of the data (particularly if it involves sensitive personal data such as health data) and should explain clearly to the employee what personal data is being collected, used and disclosed and the purpose for which and how it will be collected, used and disclosed. In addition, the employer must ensure that the data is held securely and that appropriate training is given to staff who have access to the data. The data should not be used for purposes other than those for which it has been collected and should put appropriate safety measures in place to ensure that this doesn’t happen.
In particular, where employers are using location tracking wearables or devices which record voice data, they should ensure that such devices are disabled or surrendered outside working time, 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.
It is therefore important to have a clear policy which sets out the job-related reason for the collection of the data and the limits of the use that the employer will make of the data.
Employers avoid some of these issues by hiring third party providers to collect and maintain the data, meaning that the employer only receives the data once it has been amalgamated and anonymised. However, the employer will still have a duty to ensure that the third party is in compliance with its Data Protection obligations.
Breach of trust and confidence/discrimination
Even if employers are able to adopt these technologies, care should be taken over how the data is used. A cautionary tale comes from Google’s people analytics team who devised a formula for making promotion decisions which was shown to be 90% accurate in predicting the future success of the promotion. However, Google does not use the model. It found that when you use predictive models for promotion decisions (for example to decide not to train someone as the model indicates that they would not make a good promotion), basing the decision on an algorhythm rather than on what employees are actually doing, this is a recipe for constructive unfair dismissal and/or discrimination claims. Data should be used to provide insight but it cannot replace human experience and shouldn’t be blindly accepted without challenge.
A failure to do this will lead to the data becoming key in employee litigation, particularly if the data is being used to drive productivity and to justify pay rises, promotions or the termination of employment. Employers should sense-check whether low productivity could be disability-related. In particular, collection of and access to this data may lead to an employee being able to show that the employer ought reasonably to have known that they were suffering from a disability, thereby rendering the employer liable for any resultant discrimination.
Another key concern for employers deploying wearables is that they challenge the boundary between employees’ work and personal lives in a way that many employees will find unnecessarily intrusive. In particular, wearables which measure how an employee feels on a particular day are likely to be especially controversial. That said, in PWC’s 2015 survey of 2,000 UK working adults, 40% of the 2,000 people interviewed said that they would wear a workplace wearable, rising to 56% if they knew it would be used to improve their wellbeing at work. Flexible working hours, free health screening and health and fitness incentives were the benefits people were most willing to share their personal data for. But 38% of the respondents didn’t trust their employer to use the data in a way which would benefit the employee. Explaining clearly to the employees how the data will be used is vital to obtaining their “buy-in”.
Furthermore, as the PWC survey has shown, employers should be prepared for generational differences between employees in their reactions to the use of wearables in the workplace. Millennials and Generation Y are increasingly used to sharing their personal data. Many already use wearables in their daily lives, such as the FitBit and some are used to sharing the data from such devices by competing with their friends and family (or others) to see who has completed the greatest numbers of steps each day, for example. The key to acceptance by the wider workforce is to provide reassurance regarding the aggregation of data and the positive ways in which the data will be used, as well as providing assurances about data security.
For these reasons, to date most employers have used the optional route rather than requiring employees to use wearables in the workplace. The risk is that mandatory use would undermine employee morale, having a negative impact on productivity. The key is to be transparent with employees about the use and then let the employees decide whether that proposed use is reasonable or not.
Ironically, there are also indications that the use of wearables in the workplace can make employees more anxious, as they might feel guilty about taking a lunch break or feel that they are being constantly monitored and observed by their employer.
A US defence contractor undertakes retina scanning to provide access for employees to its secure facility. But this raised questions of whether, if the scans showed signs of diabetes, the employee should be notified. Is there a duty on employers to warn the employee in this scenario, or would this be an invasion of privacy. In my view, employers re likely to be under a duty to warn employees.
Finally, the gadgets are easy to “game”. Companies including BP have given staff FitBits to try to nudge staff into healthier lifestyles. Rewards are offered by BP if the employees meet their targets. But the FitBit registers “steps” when jolted, so there are stories of employees watching TV whilst waiving their arm or giving it to their children to waive around, to increase the number of “steps”.
One can envisage a world in which employees develop “biometric CVs” which capture their productivity data and performance under certain conditions and which can be used when applying for jobs. So if a job requires high performance under particularly stressful conditions, the employee will be able to demonstrate with the data that they have performed well under similar conditions in the past.