Big Brother is watching youÖ

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 is wanting to produce and how, if at all, will this help businesses?

Using wireless sensors the software covered by the application can remotely monitor a workerís physical wellbeing, productivity and competence. Much like the traditional ëlie detectorí the software will track (amongst other things) an individuals 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 that is based on the personís weight, age and height. Historically it has only been people in life threatening careers, such as pilots, that are 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 workersí physical state and ensure that any workers that need assistance gain this in timely fashion. 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. However, 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 in order 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. Information gained from use of the software may indicate that an employee is suffering from stress or another underlying medical condition, which may afford them protection 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 under-performers or employees with health problems.

On a similar theme (and by way of reminder), employees throughout Europe have already objected to monitoring and ethics codes from employers in headline cases in France and Germany. 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 on data protection and privacy have already been raised by civil liberties groups and privacy lawyers who have already criticised the idea. The Information Commissioners Office has stated that this sort of software and the intrusion it carries could only be justified by businesses in ìexceptional circumstancesî, the likes of which have not yet been elaborated. Before businesses use this software they should consider the implications on their workforce, such as invasion of an individualís life may well result in the deterioration of working relationships and a lack of trust between employer and employee, let alone the legal risks a company would have to be aware of in relation to employment, data protection and privacy legislation.

For now itís 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 before implementing such systems and the need to avoid clashes on the use of such systems and policy between countries such as the issues raised over the Sarbanes Oxley whistle blowing help lines in France.