article
Watching you work
23 May 2008
Much fuss was made recently in national newspapers and several
blogs about Microsoft’s recent filing of a patent for software
designed to remotely and automatically monitor the wellbeing,
stress levels and productivity of employees in the work place, not
so much for speculation as to the likelihood of the patent being
granted, but more for its potential intrusion into the privacy and
daily lives of employees.
Richard Nicholas, technology lawyer at Browne Jacobson LLP looks
at some of the issues arising from this latest patent and whether
or not it heralds an inevitable step in employee monitoring.
Fuss about nothing ?
For many people today’s open plan office environment is
sufficiently exposed, with every telephone call overheard by those
around them, their movements, availability and conversations
visible to the rest of the office and emails monitored by their IT
department. The recent Microsoft patent application however goes
considerably further as far as monitoring is concerned, and allows
employers (or indeed those enabled on a network) to remotely
monitor the heart rate, body temperature, rate of breathing, facial
expressions, movement and blood pressure of those using a
particular system, whilst at the same time comparing performance of
those users.
The patent application (US Patent Application 20070300174)
relates to what is described as a “unique monitoring system” which
is designed to “improve overall user productivity and
efficiency”.
The description within the patent application explains the use
of monitoring of facial expressions and other physical attributes
of users on the basis that communication between humans takes
account of more than just the words spoken, but rather includes
gestures and expressions that put those words into context. By
comparison typical communication between humans and machines is
limited to written words and so very little context is perceived by
either the machine, or other users of the machines.
One of the stated benefits of the system is to improve
efficiency by improving communication and allocating tasks by
priority and ability.
It also claims to make it easier to compare the performance of
users of the system, spot problems sooner, allow users to exchange
information more easily and generally improve project management.
Perhaps the most striking features of the patent application are
those stated in respect of the automatic monitoring of users and
detection of levels of frustration or stress and the related
feature of aggregating this data across users in order to identify
trends and compare performance.
Whether these benefits are likely to be appreciated by the
likely users of the system however may well depend on the context
in which it is used. It is worth noting at the outset that,
although the newspaper headlines concerned employees, the patent
application is not limited in this way and could equally apply to
users of a network who were not part of the same organisation.
Automatic detection
According to the description of the system included as part of
the patent application the system monitors both online and offline
activities of either a single user or several users acting
together. One feature of the system is that it will automatically
detect frustration or stress in a user through physiological or
environmental sensors (e.g. breathing, heart rate, blood pressure,
galvanic skin response, brain signals, respiration rate, body
temperature, movement or facial expressions). These signals are
picked up by the system which can notify a manager or someone else
in the best position to help, or could prompt the user to a
particular website or contact number.
The monitoring is not limited to desktop work either and could
be performed across various devices including PDAs, laptops, pocket
PC or mobile telephone, the information from which can be combined
together to form a bigger picture.
Someone notified that a person is (for instance) quietly
exploding with rage, stress or despair can, by referring to their
own device, find out what that particular person was doing, how
they were doing it, where they were doing it and indeed what state
they were in when they started it.
From a pure health and safety perspective, the ability of
employers to tell when staff are stressed about a particular piece
of work is no doubt a positive thing. High levels of stress, when
maintained over prolonged periods often have negative effects on
both the employee and the employer. An employee who is suffering in
silence may be putting their own health and their employer at
risk.
The ability to detect physiological changes is less positive
from the point of view of an individual’s expectation of privacy,
since the same signals that an individual is stressed or suffering
difficulties at work could also presumably indicate that an
employee is lying, or doesn’t feel as enthusiastic about a given
project as he would like his employers to believe. At the point
where physical changes can be monitored in parallel with other
communication, those monitoring the system could have access to
more information than would normally be exchanged in pure (as the
patent application puts it) “human to human” communication.
Performance Management
The system allows users involved in less urgent tasks to be
reassigned to those that are more critical for the company, or
indeed to tasks to which that employee is best suited.
It also allows users to see how other users are doing, how they
are dealing with a particular task and how their performance
compares with others in a similar situation.
All of which makes sense from a pure organisational point of
view, but from the point of view of an employee, knowing that his
physiological state might be recorded and used in future career
discussions it might seem another matter altogether.
Cause for concern?
The fact that Microsoft have gone to the trouble of applying for
this patent suggests that they at least consider there to be a
potential market for a system like this. If such a system were
introduced in the UK could employers really use it to monitor
employees in this way?
Any monitoring of employees would have to take account of
existing legislation in particular:
The Data Protection Act 1998 (concerning the collection and
processing of data),
The Regulation of Investigatory Powers Act 2000 and
Telecommunications (Lawful Business Practice) (Interception of
Communications) Regulations 2000 (concerning the interception of
phone calls and emails) and
The Human rights Act 1998 (and in particular the employee’s
legitimate expectation of privacy).
Any employee monitoring which is disproportionate to that
legitimately required by the employer and/or which is carried out
without the consent of an employee would most likely be a breach of
one or more of these pieces of legislation.
For some time however it has become common practice for
employers to require employees, as part of their contract of
employment, to sign up to policies on email, telephone and internet
use which set out what use is permitted during working hours and
setting out monitoring policies which describe the monitoring that
the employer carries out. Provided the employer has the employee’s
consent and adopts a policy that is fair and complies with
legislation the employer is likely to be on relatively safe
grounds.
Its not a huge step to imagine a similar practice being adopted
in respect of more invasive incursions into employee’s privacy.
Certainly where individuals are required to work on complex
projects as part of a global team, where language differences are
an issue or urgent decisions need to be made with no room for error
it is possible to imagine where automated monitoring is desirable
for the employer. It may not be too great a step to imagine that
asking for consent to the use of such monitoring is not considered
unreasonable. When that day comes no one need ask how you’re
enjoying your work at the moment.
They’ll already know.
This article was first published in Patent
World
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