UK: Big Brother Is Watching You...

Last Updated: 13 March 2008

By Jonathan Armstrong, Selina Hinchliffe, and Nicola Bennison

The US Patent Office last month published a new Microsoft patent application. The application is for workplace monitoring software and patent lawyers are suggesting this application could be granted within the year.

So what is it that Microsoft wants to produce and how, if at all, will this help businesses?

Using wireless sensors, the software covered by the application can remotely monitor a worker's physical wellbeing, productivity and competence. Much like the traditional 'lie detector', the software will track (amongst other things) an individual's heart rate, body temperature, blood pressure and movement, allowing it to automatically detect stress.

The physical changes will be linked into a psychological profile of the individual in question. The profile is based on the person's weight, age and height. Historically, it has only been people in life-threatening careers, such as pilots, who have been monitored in this way. It seems Microsoft is the first company to suggest applying these systems to the everyday office worker.

Using the software, managers will be able to track their workers' physical state and ensure that any workers who need assistance receive it in a timely way. Early indications show the software is to be sold as a benefit to organisations and their workers.

However, before this application has even been granted, there are fears amongst trade unions that the software could be used against employees to support, for example, a case for dismissal. Even if an employer sought to use information gained from use of the software in such a way, that employer would still need to have a fair reason for dismissal and follow a fair procedure in carrying out the dismissal to minimise the risk of a subsequent unfair dismissal claim from the employee.

In addition, before deciding to dismiss, the employer would need to have regard to its obligations under the Disability Discrimination Act 1995 ('the 1995 Act'). Information gained from use of the software may indicate that an employee is suffering from stress or another underlying medical condition. This may afford protection for the employee under the 1995 Act and result in the need for reasonable adjustments to be made to the employee's job or workplace.

Furthermore, a failure on the part of an employer to support a sick employee may give rise, in certain circumstances, to a personal injury claim against that employer. In short, the software will not make it easier for employers to dismiss underperformers or employees with health problems.

On a similar theme (and as a reminder), employees throughout Europe have already objected to monitoring and ethics codes from employers in headline cases in France and Germany (covered in e80s in the last two years). Some multinationals have implemented monitoring systems (for example, relying on CCTV, access control systems or key logging) and have faced problems with employee buy-in.

The implications of this new software for data protection and privacy have already been raised by civil liberties groups and privacy lawyers, who have criticised Microsoft's idea. The Information Commissioner's Office has stated that this sort of software and the intrusion it brings could only be justified by businesses in 'exceptional circumstances', the likes of which have not yet been elaborated.

Before businesses use this software, they should consider the implications for their workforce. Such invasion of an individual's life may well result in the deterioration of working relationships and a lack of trust between employer and employee. Companies would also need to be aware of the legal risks in relation to employment, data protection and privacy legislation.

For now, it's a waiting game to see what happens in the US Patent Office. It remains to be seen whether this software will get off the ground. However, what is clear is that proper thought needs to be given to these systems before implementing them. There will also be a need to avoid clashes between the use of such systems and policy between countries. The issues raised over the Sarbanes Oxley whistle-blowing help lines, reported in previous e80s, still rumble on.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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