Two top lawyers explain the legal restrictions and offer guidance on how HR can overcome them
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Deploying new technology is difficult enough as employers often struggle to get the workforce on board – however, it seems staff-buy is just one part of a much bigger problem.
According to Kylie Dunn and Liz Blythe – both lawyers with Russell McVeagh – considering the legal requirements around implementing new technology is of utmost importance yet many HR professionals forget to do just that.
Dunn leads the firm’s employment practice while Blythe is a highly experienced lawyer across the technology and commerce sector. The pair point to one 2006 case – OCS Ltd v Service and Food Workers' Union Nga Ringa Tota Inc. – which considered the process necessary to introduce fingerprint scanning for time recording.
“The technology was implemented without consultation, and over the objections of a Pasifika workforce whose concerns were on cultural grounds,” explain Dunn and Blythe. “The court held that employees were not acting unlawfully in refusing to use the new technology, and the employer was required to consult and consider feedback before implementation could be lawful.”
Importantly, the court also offered clear advice to OCS on how their process could have been improved – advice which now serves as a vital guideline for other employers.
“The court commented that explaining the technology to employees before introduction could have avoided issues. It did appear that a lot of the angst (and litigation) could have at least been minimised through a discussion regarding the technology itself,” say Dunn and Blythe.
“This is particularly the case given there was a misconception around storage and a concern by the employees that their employer was ‘finger printing’ them, in a manner that was like a criminal process. As with many things, bringing employees along for the journey is likely to be part of any successful transition.”
Dunn and Blythe also urge employers to assess regulatory risk and keep it front of mind – both when selecting appropriate technology and during the implementation process.
“Early adopters of emerging technologies should be cognizant of the views of regulators, who may take longer to react to disruptive technologies,” they tell HRD.
“Employers in highly-regulated industries, such as the financial services sector, should engage with regulators early on to determine whether the innovation meets relevant regulatory requirements,” they continue.
“Some regulatory authorities provide a ‘regulatory sandbox’ facility which can be utilised to pilot innovative industry technologies and gain clarity about rules where the technology doesn’t easily fit into the existing regulatory framework. The same approach could also be taken to new and/or unorthodox methods of time recording, if they are to form the basis of an employer's statutory wage and time record.”
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According to Kylie Dunn and Liz Blythe – both lawyers with Russell McVeagh – considering the legal requirements around implementing new technology is of utmost importance yet many HR professionals forget to do just that.
Dunn leads the firm’s employment practice while Blythe is a highly experienced lawyer across the technology and commerce sector. The pair point to one 2006 case – OCS Ltd v Service and Food Workers' Union Nga Ringa Tota Inc. – which considered the process necessary to introduce fingerprint scanning for time recording.
“The technology was implemented without consultation, and over the objections of a Pasifika workforce whose concerns were on cultural grounds,” explain Dunn and Blythe. “The court held that employees were not acting unlawfully in refusing to use the new technology, and the employer was required to consult and consider feedback before implementation could be lawful.”
Importantly, the court also offered clear advice to OCS on how their process could have been improved – advice which now serves as a vital guideline for other employers.
“The court commented that explaining the technology to employees before introduction could have avoided issues. It did appear that a lot of the angst (and litigation) could have at least been minimised through a discussion regarding the technology itself,” say Dunn and Blythe.
“This is particularly the case given there was a misconception around storage and a concern by the employees that their employer was ‘finger printing’ them, in a manner that was like a criminal process. As with many things, bringing employees along for the journey is likely to be part of any successful transition.”
Dunn and Blythe also urge employers to assess regulatory risk and keep it front of mind – both when selecting appropriate technology and during the implementation process.
“Early adopters of emerging technologies should be cognizant of the views of regulators, who may take longer to react to disruptive technologies,” they tell HRD.
“Employers in highly-regulated industries, such as the financial services sector, should engage with regulators early on to determine whether the innovation meets relevant regulatory requirements,” they continue.
“Some regulatory authorities provide a ‘regulatory sandbox’ facility which can be utilised to pilot innovative industry technologies and gain clarity about rules where the technology doesn’t easily fit into the existing regulatory framework. The same approach could also be taken to new and/or unorthodox methods of time recording, if they are to form the basis of an employer's statutory wage and time record.”
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