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Isobel Macey-Dare of City, University of London examines the increasing use of surveillance technology in the workplace and its potential to undermine industrial action. All Eyes on the Strike was the Best in Category winner for the 2024 vLex International Writing Competition category: Industrial Action.

All Eyes on the Strike: Workplace Surveillance and Industrial Action

By Isobel Macey-Dare

The use of employee-monitoring technology has grown exponentially in recent years. One reason is the increase in people working from home. Employers have utilised remote working apps such as Slack, which allow certain users to export workspace data including private messages, to track employee performance and engagement (1). Another giant of remote working, Zoom, allows employers to read employee chats, and see who joins which meeting and when (2). In 2023 Zoom received a Big Brother Award, technology’s answer to the Razzies, for exposing its users to undue surveillance. (3)

There has been backlash over dystopian invasive surveillance, such as Rob Reich’s description of a ‘surveillance panopticon of eyeball tracking, keystroke logging, [and] location tracing.’ (4) However, even the most inconspicuous and inoffensive workplace surveillance can threaten workers’ rights. Nowhere is this clearer than in the steady erosion of the ability take part in industrial action.

In some countries the use of workplace surveillance which interferes with legally protected trade union activities has been halted. In 2021, the Court of Bologna in Italy found that a Deliveroo algorithm, Frank, was discriminatory and violated labour laws. (5) Frank had been used to track drivers, those who were deemed unreliable would be given ‘fewer job opportunities in the future.’ (6) It did not distinguish between legally protected right to strike, and other reasons for withholding labour. (7) Thus, it penalised those taking part in strike action.

It was not suggested that Deliveroo had intentionally developed an algorithm to economically disincentivise union activities. Nevertheless, Frank is a warning of the way in which workplace surveillance could subvert union activities if allowed by national courts.

In April 2023, it was reported that faculty at a Queen Mary University of London (QMUL) received an email informing them that sensors would be installed in their office spaces (8). QMUL was one of many universities involved in industrial action at the time. The nature and purpose of said sensors has been contested.

According to Nature, the sensors convert images into coordinates, enabling university-management to monitor the number of people in specific rooms at any time (9). The sensor-provider claims the sensor is ‘100% anonymous,’ and both GDPR and CCPA compliant because it ‘does not capture or store personally identifiable information.’ (10)

Lecturers voiced their fears that this technology could be used to undermine industrial action. (11) Indeed, even if the data gathered is totally anonymous, it is still possible that it could be linked to specific members of staff. If faculty use specific office spaces, the data gathered by sensors can be used to determine which members of staff are fulfilling contracted hours and which are taking part in forms of industrial action such as refusing to cover the hours of other staff or striking.

The apprehension that advances in technology, and its increasing availability, could be used to undermine industrial action suggests that it relies heavily upon the inability of individuals to be identified. The reason for this can be found in case law. (12)

It may be necessary for employees in England and Wales to conceal their individual participation in industrial action because domestic law favours employers, allowing them to enact punitive measures for action short of a strike (ASOS). In Wiluszynski v Tower Hamlets, the Court of Appeal upheld the decision in Miles v Wakefield MDC that an employer is entitled to refuse payment for an employee’s partial performance of their contractual duties. (13) The Wiluszynski rule means that there is little legal recourse for employees, like some at QMUL, who have had 100% of their pay docked in response to ASOS. (14)

David Mead argues that this rule constitutes a ‘disproportionate interference with an employee’s right to strike and to take industrial action, under Article 11 of the ECHR.’ (15) Under the ECHR, employers cannot prevent employees from taking part in legal union activities. It is difficult to see how 100% deductions for partial performance during industrial action does not qualify, especially during a cost-of-living crisis, as a method used by employers to prevent workers from taking part in industrial action at all.

While the future seems brighter for Italy, the sophistication of technology and employers’ disregard for the autonomy of employees seems to be moving in an inevitable direction in England and Wales. For trade unions in England and Wales domestic law may be the coffin, and surveillance the final nail.

References

1. Slack, ‘Export Your Workspace Data’ (Slack Help Center) https://slack.com/intl/en-gb/help/articles/201658943-Export-your-workspace-data accessed 1 January 2024.

2. Digital Trends, ‘How your boss can spy on you with Slack, Zoom, and Teams’ (Digital Trends, July 19 2023) https://www.digitaltrends.com/computing/how-your-boss-can-spy-on-you-with-slack-zoom-and-teams/ accessed December 28 2023.

3. Big Brother Awards, ‘Communication (2023) Zoom Video Communications, Inc.’ (Big Brother Awards, 2023) https://digitalcourage.video/videos/embed/dfaf0056-415c-4669-bd94-909a586edd3e accessed December 28 2023.

4. Rob Reich, ‘The Frontier of AI Science should be in Universities’ (Boston Review, 18, Spring 2021) https://www.proquest.com/magazines/frontier-ai-science-should-be-universities/docview/2527609257/se-2. accessed 1 January 2024, p. 83.

5. Gabriel Geiger, ‘Court rules against Deliveroo's rider algorithm, citing discrimination’ (Business & Human Rights Resource Centre, 5 January 2021) https://www.business-humanrights.org/en/latest-news/italy-court-rules-against-deliveroos-rider-algorithm-citing-discrimination/ accessed 1 January 2024.

6. Ibid

7. Ibid

8. Anne Gulland & Fayth Tan, ‘Campus surveillance: students and professors decry sensors in buildings’ (Nature, 20 October 2023) https://www.nature.com/articles/d41586-023-03287-w accessed 27 October 2023.

9. Ibid

10. XY Sense, ‘XY Sense Privacy & Security’ (XY Sense, 28 January 2022) https://xysense.com/privacy-and-security/ accessed 27 October 2023.

11. Tom Williams, ‘Queen Mary installs cameras to track staff office use’ (Times Higher Education, 22 June 2023) https://www.timeshighereducation.com/news/queen-mary-installs-cameras-track-staff-office-use accessed 27 October 2023.

12. QMUCU, ‘How to use legal knowledge as university workers’ (UCU Queen Mary University of London, 18 May 2023) https://qmucu.org/2023/05/18/legal-knowledge-project/ accessed 1 December 2023.

13. Wiluszynski v Tower Hamlets LBC [1989] I.C.R. 493, p. 499, per Fox L.J.; Miles v Wakefield Metropolitan District Council Appellants [1987] A.C. 539, pp. 552-553, per Lord Brightman.

14. Catherine Lough, ‘It’s aggressive’, say university staff about 100% pay cut for striking’ (The Evening Standard, 10 February 2022) https://www.standard.co.uk/news/uk/queen-mary-university-of-london-students-asos-bame-b981943.html accessed 27 December 2023.

15. David Mead, ‘We’re Miles Apart: Disproportionate Deductions from Wages, Industrial Action and Human Rights’ (2023) 52 ILJ 1, p. 1, Abstract.

Bibliography

Big Brother Awards, ‘Communication (2023) Zoom Video Communications, Inc.’ (Big Brother Awards, 2023) https://digitalcourage.video/videos/embed/dfaf0056-415c-4669-bd94-909a586edd3e accessed December 28 2023

Digital Trends, ‘How your boss can spy on you with Slack, Zoom, and Teams’ (Digital Trends, July 19 2023) https://www.digitaltrends.com/computing/how-your-boss-can-spy-on-you-with-slack-zoom-and-teams/ accessed December 28 2023

Geiger, Gabriel ‘Court rules against Deliveroo's rider algorithm, citing discrimination’ (Business & Human Rights Resource Centre, 5 January 2021) https://www.business-humanrights.org/en/latest-news/italy-court-rules-against-deliveroos-rider-algorithm-citing-discrimination/ accessed 1 January 2024

Gulland, Anne, & Tan, Fayth, ‘Campus surveillance: students and professors decry sensors in buildings’ (Nature, 20 October 2023) https://www.nature.com/articles/d41586-023-03287-w accessed 27 October 2023

Lough, Catherine, ‘It’s aggressive’, say university staff about 100% pay cut for striking’ (The Evening Standard, 10 February 2022) https://www.standard.co.uk/news/uk/queen-mary-university-of-london-students-asos-bame-b981943.html accessed 27 December 2023

Mead, David, ‘We’re Miles Apart: Disproportionate Deductions from Wages, Industrial Action and Human Rights’ (2023) 52 ILJ 1, p. 1, Abstract

QMUCU, ‘How to use legal knowledge as university workers’ (UCU Queen Mary University of London, 18 May 2023) https://qmucu.org/2023/05/18/legal-knowledge-project/ accessed 1 December 2023

Reich, Rob ‘The Frontier of AI Science should be in Universities’ (Boston Review, 18, Spring 2021) https://www.proquest.com/magazines/frontier-ai-science-should-be-universities/docview/2527609257/se-2. accessed 1 January 2024, p. 83

Slack, ‘Export Your Workspace Data’ (Slack Help Center) https://slack.com/intl/en-gb/help/articles/201658943-Export-your-workspace-data accessed 1 January 2024

Williams, Tom, ‘Queen Mary installs cameras to track staff office use’ (Times Higher Education, 22 June 2023) https://www.timeshighereducation.com/news/queen-mary-installs-cameras-track-staff-office-use accessed 27 October 2023

Wiluszynski v Tower Hamlets LBC [1989] I.C.R. 493, p. 499, per Fox L.J.; Miles v Wakefield Metropolitan District Council Appellants [1987] A.C. 539, pp. 552-553, per Lord Brightman

XY Sense, ‘XY Sense Privacy & Security’ (XY Sense, 28 January 2022) https://xysense.com/privacy-and-security/ accessed 27 October 2023