Is workplace data the future of employment law?

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Data-intensive employment law, based on huge data sets, could soon be commonplace

The Fourth Industrial Revolution, Industry 4.0, the Internet of Things. Whatever buzzword you choose to use, it’s clear that technology is changing the way we live, work and relate to each other.

From personal speakers that can turn lights on, to wearable technology that feeds health and fitness data directly to medical professionals; more than 500 billion devices are expected to be connected to the Internet by 2030, according to Cisco, each with sensors that collect data, interact with the environment, and communicate over a network.

In the workplace these devices are driving a wide range of benefits. Whether in the factory, in an office or in the field, smart connected devices can increase productivity, facilitate leaner working practices and improve efficiency.

The key is in ‘big data’ – giving organisations greater visibility of their people, performance, assets and locations. But is there another benefit?

Using data for employment law

This shift towards smart devices and data-led processes has, in turn, given employers access to a huge pool of information about their employees. In many cases information that was not previously available.

GPS data on company-owned vehicles, mobile phone and email data, smart system log-ins and entry systems, even health checks through wearable technology are now available to employers with the click of a button.

In the US there is a growing trend to use this data to establish liability in employment law cases. By checking the information available to them employers (or more specifically their employment law firms) can build a picture of an employee’s day – what time did they clock in, how long did it take to turn on their laptop, did they stop for a lunch break etc – and assess whether workers have grounds for a dispute or not.

It is a safe assumption that this kind of data-intensive employment law, based on huge data sets, will soon be commonplace in the UK too (particularly as we continue to see increasingly-complex employment law cases).

Embracing the digital shift

For many the technologies are already in place; this is not about keeping up with technology, it’s more about adapting policies and procedures to make sure they incorporate the advancements being made across entire industries.

Employers should ensure all data sources are listed in company policy handbooks, and that they are clear about how data could be used.

However, there is also an opportunity to think creatively about how to use data to protect the organisation from the threat of employment litigation.

Look back at any previous disputes and ask yourself if today’s technology might have changed the outcome, with the data it makes available. It might just be the difference in a successful defence.

Working both ways

The move towards a data-first approach – and ongoing enhancements to privacy laws – means that the employee also has greater access to information than ever.

Under the General Data Protection Regulation (GDPR) and the UK DPA (Data Protection Act) any individual located in the UK or EU can ask any company for the data that it collects about them. This includes their employer.

If requested, the employer has 30 days to provide ‘personal data’. This includes any emails that refer to the worker, as well as performance reviews, job interviews, payroll records, absence records, disciplinary records, computer access logs, CCTV footage, and recordings of phone calls to, from or about the person.

This right was available to individuals even before the GDPR, but the new regulation saw the removal of charges, a reduced turnaround time to comply with the request (from 40 days to 30), and harsh penalties for any organisation that does not comply.

It could mean a painstaking process of collating information – with potential criminal sanctions if any data is deleted after the subject access request is made.

Mary Walker is a partner and employment law specialist at law firm Gordons

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