ICO consults public on personal data in employment practices

The UK’s Information Commissioner’s Office (ICO) has launched a session on the usage of personal data by employers, together with in office monitoring applied sciences, which will likely be used to replace its present Employment Practices guidance.

On 12 August 2021, the ICO’s appearing director of regulatory assurance, Anulka Clarke, revealed a blog about data protection and employment practices, in which she launched the regulators name for views.

“In recent times, working life has changed for millions of us in a way few could have predicted,” she stated.

“Every trade sector and its staff have been impacted. Both in the public and personal sector, and companies giant and small.

“Artificial intelligence [AI] and machine learning are impacting the ways decisions are made about workers; monitoring technologies are more varied and widespread in use; and the pandemic has suddenly accelerated the trend for remote working and for obtaining health data.”

Because of the influence these developments and others can have on folks’s privateness, she added that it was important that employers perceive how they’ll function in a altering enterprise surroundings and construct belief with staff over their data rights.

The digital monitoring instruments out there right this moment enable enterprises to see a variety of details about their staff’ actions, from recording their keystrokes and mouse clicks to monitoring their bodily location and use of functions or web sites.

Predictive and behavioural analytics

Using these and quite a lot of different metrics, such software program is utilized by enterprises to conduct predictive and behavioural analytics, ostensibly enabling managers to know and monitor how productive staff are over time.

“Data protection is not a barrier to the use of new technologies to improve and develop employment practices. Data protection enables innovation to happen responsibly, it builds trust between employers and workers,” stated Clarke. “Innovation itself permits financial progress which is important as we glance in direction of a publish pandemic future.

“We’ve launched a call for views today to help us to create practical employment guidance where personal data is used, that supports both employers and staff. It is crucial we reflect as many responses as we can from as many sectors as possible.”

Clarke addressed the ICO’s name to everybody with an curiosity in UK employment practices, together with companies of each measurement, staff, commerce unions, {and professional} or commerce our bodies, who can share their views by answering a survey.

“In replacing the [Employment] code, we plan to produce easily accessible online resources, that reflect the way work has changed and are relevant,” she stated. “The employment practices and data safety steerage will cowl matters together with recruitment and choice, employment data, monitoring of staff, and details about staff’ well being. We intend so as to add to this evolving useful resource over time.

A dramatic enhance in office surveillance

While the usage of worker monitoring instruments was already ramping up earlier than Covid-19 – a 2019 Accenture survey of C-suite executives discovered that 62% of their enterprises have been “using new technologies to collect data on their people and their work to gain more actionable insights” – the transfer to distant working has facilitated a dramatic enhance in their use.

According to David Emm, principal safety researcher at Kaspersky, heightened office surveillance is a pattern that’s occurring throughout all sectors of the economic system.  

“Our research found that 44% of the UK’s pandemic-forced home working contingent have had monitoring software installed on company-provided devices. This is naturally having a massive effect on wellbeing, with 46% of UK employees working overtime as a direct result of workplace surveillance, and a further 25% admitting they work ‘harder’ for fear of being perceived as lazy,” he stated.

“Aside from the obvious risks of burnout and resentment, this sharp increase in surveillance also leads to an increased risk of shadow IT and associated threats, as some staff use personal devices, that are ‘off the radar’ for work. While remote working does bring significant benefits to workers, there is also a dark side when it’s not managed holistically. There is a serious need for employers to examine their ‘surveillance’ practices to understand the true impact on productivity and worker satisfaction.”

A separate survey from Skillcast from November 2020 additionally discovered that one in 5 employers have been already utilizing, or in any other case planning to introduce, worker monitoring software program for these working remotely from dwelling.

In the identical month, a report from the UK’s Trades Union Congress (TUC) discovered that one in seven staff had skilled elevated monitoring at work for the reason that begin of the coronavirus pandemic.

Unions reply

In response to the session announcement, Andrew Pakes, analysis director at specialist skilled science and analysis union Prospect, instructed Computer Weekly that applied sciences enabling the mass assortment of worker data have the capability to essentially change the work relationship, with doubtlessly severe penalties for staff rights.

“The growth in remote working and power of digital technology has transformed how we work over the last 18 months but it has also come with a the worrying rise in intrusive management by surveillance. There are increasing concerns that our data is being used to micro-manage, monitor and control workers, often without any transparency over how decisions are made,” he stated.

“This session must be step one in making certain staff’ data rights on surveillance are clear, spelt out to staff and recognises the facility digital expertise has over how we’re managed and work.

“We need new guidance that confirms to employers that workers and unions have rights to be consulted about how monitoring software is introduced and used by employers.”

He added that work already underway to make sure staff voices have been well-represented in the session.

In June 2021, Computer Weekly reported on a marketing campaign by the United Tech and Allied Workers union (UTAW) to guard staff’ privateness and lift consciousness about office monitoring practices.

“Our main findings through UTAW’s campaign show that hardly anyone knows how to spot surveillance nor knows their legal rights around surveillance. Without awareness and understanding there is no chance that any protections will be applied in workplaces,” stated UTAW spokesperson Marcus Storm in response to the session, including he would love for the ensuing ICO steerage to be easy, simple to know, and utilized constantly all through the UK.

“I’d additionally prefer to see staff have a say in any implementation of surveillance in the office. This is as a result of surveillance has a special place in several types of trade – consider warehouses and consider software program engineering. Employees will know what kind of surveillance is most applicable and appropriate for them to do their work, and since it touches upon delicate matters reminiscent of privateness, they need to completely have a say and be capable to specific their opinions on any surveillance coverage.

“Without employees being able to push for their wants, there is a real danger that managers simply adopt the most invasive surveillance tools they can, because nobody is pushing back on them. I’m sure you saw the recent ridiculous XSolla firing of 150 employees based on silly metrics like clicks, Jira activity, and emails. Powerful surveillance simply gives poor managers more reasons to unfairly get rid of people.”

Employee surveillance information

As a part of its marketing campaign, UTAW labored with authorized consultants to construct an employee surveillance guide on its website, with the purpose of serving to staff – in addition to managers – to higher perceive their rights and tasks.

Throughout 2021 the App Driver’s and Courier’s Union (ADCU) has been pushing for larger algorithmic transparency from ride-hailing companies like Uber, Ola and Bolt, notably in regards to how data is used in employment selections.

James Farrar, normal secretary of the ADCU, stated whereas the session is welcome, “I’d choose to see the regulator take rigorous enforcement motion in opposition to rogue gig economic system employers who’ve ridden roughshod over data safety legislation for years.

“I’m involved that the proposed evaluate takes a passive method emphasising a spotlight on static data, and never almost sufficient consideration is paid to opaque lively algorithmic administration processes underpinned by AI and machine studying.

“For instance, secret worker profiles are now routinely used illegally by platform employers for automated decision making relating to work allocation, performance management and pay. Gig workers are subjected to intense digital surveillance even at times when they have not logged in to make themselves available for work.”

Farrar added that, because of the seriousness of the influence these practices can have on precarious staff, the ICO should additionally conduct an pressing evaluate devoted solely to how personal data is used in gig economic system employment practices.

Legal foundation for office monitoring

Speaking to Computer Weekly in May 2021 about deploying monitoring software program ethically, Philippa Collins – a lecturer in legislation at Bristol University who specialises in labour legislation, human rights and expertise – stated that organisations ought to solely accumulate and course of data that’s completely crucial for the needs they’ve outlined, including that they need to be capable to perceive what the software program is doing and clearly clarify why it’s crucial.

“If I was in the room with an [external] data protection officer… could I convince them that every single data processing point was necessary? I think that’s going to be quite tricky,” she says, including the software program’s deployment additionally must be monitored on an ongoing foundation to make sure its use stays throughout the authentic function and is subsequently compliant with the General Data Protection Regulation (GDPR).

“You’ve got to keep checking. It’s not like you just introduce it one day and your obligations are done – you have to keep checking that what you’re doing is legitimate and that it’s actually achieving the aims you set out to achieve.”

While Collins agreed staff needs to be consulted, each usually and as data topics, she stated organisations can’t merely rely on worker consent as their authorized foundation for utilizing such applied sciences.

“It’s very clear that, because of the imbalance of bargaining power between workers and employers, an employer would not, as a data processor, be able to rely on the consent of their employees to process their data,” she stated, including it’s a frequent false impression that signing an employment contract robotically permits enterprises to course of their staff’ data.

“If you’re that employer, you’re looking to be compliant, you’re looking to do this in a way that’s entirely legitimate. Consultation would improve how you go about it – it would improve the logistics of it because you’d have employee buy-in, but you’d still want to be looking for another lawful basis to support your processing.”

The deadline for submitting views to the ICO on personal data and employment practices is Thursday 21 October 2021.

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