Union pushes for collective bargaining around technology and data

Specialist technology workers union Prospect has published guidance to help workers negotiate with employers about the use of various digital technologies in the workplace, placing particular emphasis on the need for unions to establish collective bargaining over how technology is deployed.

Since the onset of the Covid-19 pandemic and the rise of remote and hybrid working, many enterprises have started using monitoring software to keep an eye on their employees working from home.

Many of the digital monitoring tools available today allow enterprises to see a range of information about their employees’ activities, from recording their keystrokes and mouse clicks to tracking their physical location and use of applications or websites.

Using these and a variety of other information, the software can help enterprises to conduct predictive and behavioural analytics, enabling managers to understand and track how productive employees are over time. It can also be used to feed algorithms with human resource functions, including hiring and firing.

However, despite the substantial increase in sales of employee productivity monitoring software since the start of the pandemic and the benefits managers claim it can bring organisations, some are worried about how it is implemented and deployed, citing privacy and employee distrust as major concerns.

“These changes raise important practical issues for trade unionists. New technologies at work can be positive – for productivity, fairness, safety, or quality of work. But they can also bring risks – of dehumanisation, loss of privacy, built-in bias, and loss of accountability,” said the Prospect guidance, published 15 February 2022.

“These are issues trade unionists should be concerned about, and that workers will increasingly look to trade unions to find solutions to.”

To deal with the power imbalances such digital technologies are widening between employers and employees, Prospect’s guidance outlines four ‘pillars’ that can help establish workers’ voice over workplace technologies: consultation, negotiation, challenge and organising.

Key to each of the pillars is the need for collective bargaining agreements around the use of data and digital technologies, which will enable their use in the workplace to be effectively scrutinised and challenged.

These collective agreements around technology should, for example, enshrine a commitment from employers to consult, review and involve the union at all stages of introducing a new technology, as well as clear rights of redress.

Andrew Pakes, Prospect research director, added that governments have demonstrated that they are always going to be behind the curve on regulating technology, meaning it is up to unions to ensure workers are protected.

“This new guide equips Prospect reps with the tools they need to be able to negotiate with employers on this issue. It is vital that employers engage with unions and their workforce at the earliest opportunity before introducing new tech or systems – this guide will ensure our reps are able to stand up for their colleagues,” he said.

“It is our hope that agreements on data rights and the use of technology will eventually be part of any collective agreement. Tooling up reps to talk about these issues is the first step towards making that a reality.”

The guidance also stressed the need for unions and workers to know the relevant laws. For example, it noted that employers are obliged by the UK General Data Protection Regulation (GDPR) to consult workers and their representatives as part of a Data Protection Impact Assessment (DPIA), which can then be used as a site of scrutiny and negotiation over the use of new technologies.

On the employer-employee dynamic, the guidance further noted that the relationship between the two is “intrinsically unbalanced” given the latter’s dependence on the former for their employment, making it hard for organisations to rely on “consent” as their lawful basis for data processing.

“It is unlikely that an employee can freely give their consent, as the fear of refusal or the real risk of a detrimental effect from a refusal will influence their decision to consent. Therefore, any introduction of new technologies in the workplace or the use of AI [artificial intelligence] means that an employer would be unlikely to use consent and would be required to use a different lawful basis,” it said.

All of this, the guidance added, should be supported by wider union organising, whereby technology-related issues can be used to build deeper engagement with and between workers.

“Consultation is more meaningful when members fully participate, so this issue is an opportunity to build engagement with members. Regular member meetings to inform them of progress and get feedback and comments from then is essential,” it said. “Members working in different areas/departments may have views and ideas to contribute to the case being putting forward.”

Prospect claims it now has several groups of workers in negotiation with employers over the future use of data and digital technology, while the guidance itself lists a number of examples where Prospect members have been involved in negotiations around the use of data and automation at work.

In a joint technical brief on healthy and safe teleworking, the World Health Organisation (WHO) and the International Labor Organisation (ILO) said that enterprises and governments should place clear limits on invasive workplace surveillance and support workers’ “right to disconnect” to reduce the negative physical and mental health impacts of digitally enabled remote working practices.

In August 2021, the UK’s Information Commissioner’s Office (ICO) launched a public consultation on the use of personal data by employers, including in workplace monitoring technologies, which will be used to update its existing Employment Practices guidance.

While the consultation closed in October 2021, the ICO has yet to publish any of its findings.