Legal warning on mobile devices

Employment lawyer warns of dangers of mobile spying

News, 12 April 2005

A leading Scottish employment lawyer has delivered a stark warning to businesses over the legal implications of using mobile devices to track the movements of their growing mobile workforces.

Although potentially useful, configuring mobile phones, Blackberries and PDAs to reveal the location of their user is a step organisations should not take lightly, argues Jane Fraser, head of the employment pensions and benefits team at Maclay Murray & Spens.

From the employer’s perspective, there can be a persuasive business argument for tracking employees using their mobile devices. For example, if an Edinburgh-based worker called into work from his sickbed, but his mobile phone tracking application revealed he was actually in London, the employer would feel compelled to act on this knowledge, however it was obtained.

“The question is no longer how employers can keep track of their workers, but under what circumstances such monitoring is acceptable,” said Jane Fraser. “Mobile tracking is already simple and, as the technology improves, is becoming more accurate. However, the Data Protection Act restricts employers’ collection and use of such information, by demanding any monitoring be ‘relevant’ and ‘not excessive’.

"For example, tracking employees who are absent from work on sickness or other grounds, or who are otherwise on their private time, would be hard to justify, if not impossible. This may present a real challenge for companies which require workers to leave their mobile phones switched on when ‘on call’.

“Businesses considering monitoring workers using mobile devices must plan thoroughly and cautiously. Any adverse impact on workers must be shown to be justified by real benefits to the employer. Consultation and communication with employees is essential, while details of how location information will be collected and used should be set out in a clear policy.”