In an increasingly digital environment, more and more employers are exploring the use of wearable devices in the workplace to enhance employees’ health and wellbeing. However, if data is not used in a transparent way, it can raise a number of legal and practical issues such as data protection and reputational harm to businesses.
Employees must first consent to use wearable technology, and employers will need to provide a legitimate reason to access and use the data it generates. It is also unlawful to make automated decisions about employees based on information gathered from wearables, so some human oversight will be needed.
There is also a risk in using health data to assess employees and their performance: staff members may well claim that they have been discriminated against on the grounds of their health or disability.
So, what can employers do to protect themselves? Clear guidelines would help. These guidelines might set out the reasons for processing employee data retrieved from wearables, as well as detailing exactly how this information will be used and what procedures the employer has in place to ensure that there is proper human oversight of any resulting decision-making. In addition, any guidelines should include information about an individual’s right to complain if they are not happy with how their data is being used.
The use of wearables is as much a ‘hearts and minds’ exercise as a legal one, and employers should seek to be as transparent as possible with their workforce to calm any concerns over how their data is used.
David Mendel is a senior associate at global law firm Freshfields Bruckhaus Deringer