Today's employee is ‘always on'. Thanks to advances in technology, the divide between work and home is becoming increasingly blurred, so much so that 40% of people check their work email five times a day outside of work hours.

Despite the vast increase in the technology available in the modern workplace, productivity is not increasing. Concerned for the health of employees, some businesses are now turning to wearables to track staff wellbeing and productivity.

For example, staff at LinkedIn used respiration wearable Spire, a clip-on respiratory tracking device, to help them reduce stress and improve productivity. The device is accompanied by alerts and guidance on how to control emotions and stress through breathing exercises. Another example is the London hedge fund using wearables to find out whether their traders' sleep patterns and alcohol intake correlates with risk-taking behaviour. The data collected from the employees' wearables helped the hedge fund to assess and manage risk within its organisation and to comply with its regulatory responsibilities.

However, 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, breach of trust and confidence and possible discrimination.

Data protection

When introducing wearables into the workplace, employers need to give careful thought to their compliance with 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 say that the data is anonymised. If no personal data is identifiable, the data protection regime may not "bite."

But employers should still exercise caution. 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, the employer should:

  • Ask for the employee's consent to the processing of the data (particularly if it involves sensitive personal data, such as health data)
  • Explain clearly to the employee what personal data is being collected, used and disclosed and the employer's intended purpose for doing so, as well as how data will be collected, used and disclosed
  • Ensure that the data is held securely and that appropriate training is given to staff who have access to the data
  • Not use the data for purposes other than those for which it has been collected, and put the required measures in place to ensure that all use is appropriate.

Employers should ensure wearables that track location or voice data are disabled or surrendered outside 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 - and as such would pose a risk to any employer collecting such information (even unwittingly).

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/discrimination

Data collected from wearables cannot replace human 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 the data alone to justify pay rises, promotions or termination of an employment contract. For example, employers should sense-check whether productivity issues 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 reasonably to have known that they were suffering from a disability, thereby rendering the employer liable for any resultant 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 rather than attempting to mandate the use of wearables in the workplace. One risk is that mandatory use would undermine employee morale, resulting in a negative impact on productivity and the mutual trust which should exist between employer and employee.

As well as ensuring compliance with the relevant laws and regulations, on the softer side the key is to be transparent with employees about the use of wearables and the intentions behind any rollout of the devices. Employers then have to listen to their employees, and ultimately the employees themselves should decide whether that proposed use is reasonable or not.

Kathryn Dooks is a partner at Kemp Little LLP which helps technology and digital media companies to manage HR risk. She provides strategic and day-to-day HR advice; helps companies to establish a presence in the UK