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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.

Data Protection

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.

Practical considerations

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”.

The future?

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.

Contact our experts for further advice

Kathryn Dooks