Giving your staff wearable tech? Here’s how to stay on the right side of the law

This article first appeared in City A.M..

Wearable technology, such as fitness tracking devices, is increasingly being introduced into the workplace as part of “corporate wellness” schemes.

It is believed that around 202m wearable devices were given out by employers in 2016 to assist their employees with managing personal health.

Corporate what?

These schemes can be a useful tool for tackling absenteeism costs and increasing engagement. It encourages employees to monitor and improve health through day-to-day activity, while also providing an attractive job perk.

Private health insurance schemes sometimes offer incentives to employees for particular levels of activity, while some employers operate schemes in exchange for flexible and remote working benefits.

How will you use my data?

Recent surveys indicate that employees are increasingly keen for their workplace to take an active role in their health and wellbeing.

However, through these devices, employers may be able to track significant data, including information such as location, working hours, rest breaks, and even activity levels.

Some employees may not be aware of, or may inadvertently overlook, possible data and security issues, taking advantage of free kit without appreciating that they may be giving up personal information for others to see.

The data from the devices, including water consumption and number of steps are, in some workplace schemes, recorded on a tally available for others to see, to encourage records of achievement.

Others will be more cautious, concerned about who sees their data and whether what they get up to will be used against them.

What should employers consider?

First, consider why you are offering the device. Is it a benefit for personal employee use, which is not linked to your systems, so all data captured is private to the employee? If so, make this clear. Also, ensure that you clarify that data linked to the device will be deleted upon return (for example on termination of employment), if the employee wishes to keep the information private.

Second, is it a benefit offered as part of a wider workforce scheme, in which data will be viewed by others?

If the devices are provided because you want the benefit of a wellness scheme to address overall health, then you will need to ensure that you are operating the scheme lawfully in terms of monitoring, data protection, and privacy. You will need to consider the use of the data, and who will be able to view it.Winning the trust of your employees will be essential to running an effective scheme.

Overcoming trust issues

Overcoming inherent distrust will probably be the biggest hurdle. Keep your ultimate aims in mind and provide reassurance that data will only be stored for specific purposes, and will not be used against employees.

If you want to be able to use such data in disciplinary proceedings, then it is likely that employees will not want to be part of the scheme. Perhaps offer linked benefits in return, such as flexible working.

How can you lawfully process the information?

  • Formulate clear policies on how information from devices may be processed, stored and used.
  • Update existing policies on monitoring and use of IT systems, equipment and communication, and data protection.
  • Be transparent about the probable purposes for which the data may be used.
  • Communicate the schemes clearly so that employees appreciate the potential implications of how the data will be used.
  • Don’t store data which is not accurate or up to date.
  • Keep data secure.
  • Set limits on and guidelines for employees who deal with the data collected, making clear that misuse of such data is a disciplinary offence.
  • Explicit individual consent is required to process sensitive personal data – which includes information about physical health or condition.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.