When is it okay for Big Brother to watch you?

When is it okay for Big Brother to watch you?

The chances are that you’ve already let technology track your movements. It could be you use Strava or wear a Fit Bit; it could be that you’ve let Facebook know when you’ve arrived at an airport or allowed an app to use your location settings. The fact is, it’s far easier for others to keep an eye on us these days.

Could employers embrace this technology to keep a closer eye on staff? The answer is: yes, and many are already. CCTV is probably the most common form of employee surveillance, particularly in shops when workers are standing at the till. When driving is a big part of the job, GPS and smart phone sensors have been used to track workers’ whereabouts for some time. Some firms even keep tabs on driving behaviour.

Of course, firms have long had the ability to monitor email and phone conversations but as technology improves, it has created more opportunities, which have raised more and more concerns about privacy protection. Last year, Daily Telegraph staff cried foul when their employer fitted a tracking device to their desks. For management, the heat sensor could – quite literally – monitor the efficiency of the newspaper’s hot-desking policy. For journalists, however, it was Big Brother-style surveillance and they successfully campaigned for the sensors to be removed.

Where firms have a ‘Bring Your Own Device’ policy, corporate data security policies may allow employers to see other information on these personal devices to prevent conflict of interest, insider trading, public sharing of sensitive information or other scenarios that could dent the company’s reputation.

At the extreme end is a company like Humanyse, which supplies companies with employee ID badges that have inbuilt biometric measuring technology which can track everything from movements and interactions around the office to lengths of conversation and even voice tone.

Even though the technology exists, there remain questions over its effectiveness as well as its morality. A pilot study in the US which assessed if health care workers followed hand-washing rules found that the rate of hand-washing did increase when staff knew they were wearing a monitor; however, when monitoring was removed, the hand-washing rate fell below pre-survey levels.

Employers clearly have to take a common sense approach to monitoring and get the employees’ consent before implementing any new surveillance. An employer’s failure to consider the adverse impact of monitoring could impact, or even destroy, working relationships, creating contractual difficulties and/or breaking the law.

Employees also need to take a common sense approach to using new technology, especially social media. If you do not wish certain activity to be seen by your employer or reported to your employer, don’t post it in a public forum on social media. Once you have shared the information with the world, you cannot take it back or claim an invasion of privacy if someone then decides to use that information.

In Jersey, the law has yet to catch up with much of this new technology. However, where the new technology gathers data that is stored, the data’s use is governed by the Data Protection (Jersey) Law 2005 and, when GDPR is introduced in May 2018, new data regulations are likely to be included that cover issues such as the right of data subjects to be forgotten.

Employers have a duty as data controllers under the law. Allowing employees to bring their own devices into the workplace may be breaching data protection regulations if the organisation’s data was to leave the premises on these personal mobile devices.

Even when an employer can justify monitoring, they should strike a balance between the legitimate need to run a business in the best way they deem fit and respect for their employees’ private information and activities.

Our advice is clear: before you track, monitor or spy on your employees, talk to us first to ensure that your employment documentation allows you to do so and/or you have the got the consent of your employees.

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