Information and Communication Technology and Voice. Constraint or Capability?

Tonia Novitz[1]

Introduction

By 1991, a Canadian academic was reporting that ‘spectacular advances in microelectronic technologies are transforming the workplace’.1 At that stage, in Canada, studies showed that over 37 per cent of women used computers in their work, compared with about 30 per cent of men.2 Today those percentages seem miniscule, especially in any job going beyond bare provision of manual labour. Indeed, in 1993, a US senator was claiming that modern offices were turning into ‘electronic sweatshops’3 For example, a 2009 survey of Australian nurses indicated that (of those who responded) while only 20 per cent of nursing assistants used computers on a daily basis, 75 per cent of enrolled nurses and 95 per cent of registered nurses reported that they did so.4

There are arguably at least two ways to see the development and growth of the new information and communication technology (ICT) workplace in the context of ‘voice’ One is a familiar story of ‘constraint’, namely that computerization can enable employers more than ever before to track workers’ movements and correspondence in ways which restrict communication between workers. There is, however, an alternative story to be told of ‘capability’, which offers a more positive view of the ways in which ICT can aid voice in both unionized and non-unionized workplaces.[2] It may be helpful, at this point, to give some examples that can demonstrate how technological developments have dual effects. These may be found in computerized mechanisms for time management, as well as email and internet activity.

New computer systems now record when a worker logs in and logs off. Security systems register when a worker enters or leaves their place of work using card access. For many of us, this is the new clocking in and clocking out. Similarly, use of shared electronic diaries (such as Google calendar) can document when we are in or out of the office and our stated reasons for doing so. This may have enabling or capability-building consequences, for we may know when a colleague is likely to be free and be able to plan ahead to meet with them. Gatherings addressing a particular workplace issue may be swiftly planned and coordinated. However, such diary systems, especially when tied in to other forms of scrutiny such as timesheets or electronic monitoring of movement through tracers, pagers, or satellite navigation, also enable a manager to identify when and where meetings have taken place (and between whom) in ways that are not conducive to free or confidential communication between workers.[3] The very fact of accounting for how time is spent, such as the computerized telephone systems which operate in call centres,[4] can inhibit discussion in the workplace. The emergence of a ‘coercive supervisory style’ focused heavily on monitoring does not necessarily lead to inhibition of communication between work colleagues, as staff can respond rebelliously, sometimes getting the better of and subverting systems for their own ends.[5] However, empirical studies indicate that excessive supervisory interference followed by retaliation can ‘result in an escalating cycle of monitoring and resistance’.[6]

Email messages offer a swift and effective method of communication between workers, as can mobile phone ‘texts’ and pager ‘messages. This very accurate and lasting record of conversations may actually have some enabling effects, for example helping a worker who seeks to hold a manager to a commitment or even to demonstrate bullying or discrimination. Electronic communication systems, being frequently used by workers, may also be utilized by their organizations to recruit potential members and inform existing members.[7] Yet, such electronic communications systems may also allow scrutiny by an employer to identify ‘troublemakers’ or pursue some other business objective.[8]

Social network sites, which could offer scope for organizing protest and dissent, are frequently scanned by employers both in advance of hiring and during employment to check a potential employee’s reputation and activities.[9]

There is continuing debate regarding the legal responses appropriate to the enabling and coercive effects of ICT in the workplace. This chapter considers regulatory forms adopted primarily in the UK legal context, but seeks to draw on examples from the other countries at the centre of the ‘Voices at Work’ study: Australia, Canada, New Zealand, and the US.

In this chapter, it is readily observable that current constructions of individual employment law (adopted by courts the world over) tend to support managerial use of ICT to inhibit the voice of workers. Common law obligations subsisting across the common law world continue to require obedience to lawful and reasonable instructions[10] that, when translated into forms of electronic surveillance, have more profound effects than ever on curtailing worker voice. However, I shall also argue, from the perspective of employee capability, that there is scope for challenging the status quo through modification of common law principles.

The refusal of courts to do so, to date, has led to legislative responses, such as blacklisting, data protection, and privacy legislation, each of which has its limits. A further strategy, therefore, could be to campaign for legislation oriented towards promoting more proactive workplace-related collective communication and action. Currently, legislative recognition of the positive potential for ICT to further worker voice is centred only on the trade union recognition procedure, which as we shall see, affects only a relatively small number of workers in a minimal way. More may need to be done, which is not conditional on trade union membership or support for the same.

A further alternative source of redress is a human rights discourse. Indeed, a privacy-based approach is already familiar to those working in the ICT field. This strategy certainly has its uses and there is scope for its further development. Nevertheless, it is argued here that a human rights case should not be solely based on privacy. While important, that focus seems insufficient to establish workers’ positive capability for voice. It is argued here that this could however be achieved were greater attention paid to two other basic human rights in this context: freedom of speech and freedom of association.

  • [1] Many thanks go to the organizers of a stream (chaired by Seda Guerses, Katholieke Universiteit Leuven)who invited me to speak on the theme of ‘Freedom of Association in the Networked Workplace’ as part of theannual CPDP (Computers, Privacy & Data Protection conference) held in Brussels 2012, and who includedme in a daylong workshop hosted by Constant VZW. I am also grateful to colleagues at the University ofBristol in the Commercial Relations and Private Law research group for their comments on presentation ofa draft of this chapter; as well as to participants in the seminar on ‘Labour Law and New Technologies’ atthe inaugural LLRN conference at Barcelona in 2013 and to Guy Mundlak and Alan Bogg for further advice.All errors and omissions are my own. 1 Graham S. Lowe, ‘Computers in the Workplace’ (1991) 3(2) Perspectives on Labour and IncomeSummer Article No. 4 available at . 2 Lowe Table 1 (n 1). 3 139 US Congress Record 10,354-10,355 (1993) (statement of Senator Paul Simon); cited in AlexandraFiore and Matthew Weinick, ‘Undignified in Defeat: An analysis of the stagnation and demise of proposedlegislation limiting video surveillance in the workplace and suggestions for change’ (2007-8) 25 HofstraLabor and Employment Law Journal 525 at 530. In the US, there is empirical evidence that while, in 1997,14.9 per cent of employers monitored employees’ email messages, by 2004, 77.7 per cent of large employers did so. See Yohei Suda, ‘Monitoring E-mail of Employees in the Private Sector: A Comparison betweenWestern Europe and the United States’ (2005) 4 Washington University Global Studies Law Review 209. 4 R. Eley, J. Soar, E. Buikstra, T. Fallon, and D. Hegney, ‘Attitudes of Australian Nurses to InformationTechnology in the Workplace: A National Survey’ (2009) 27(2) CIN: Computers, Informatics, Nursing 114.
  • [2] This is the approach to the ‘spread of low-cost Internet-based information and communicationtools’ taken by Richard Freeman, ‘What, If Anything, Can Labor Do to Rejuvenate Itself and ImproveWorker Well-being in an Era of Inequality and Crisis-driven Austerity?’ (2013) 14(1-2) Perspektiven derWiirtschaftspolitik 41 at 46.
  • [3] Avner Levin, ‘Big and Little Brother: The Potential Erosion of Workplace Privacy in Canada’ (2007) 22Canadian Journal of Law and Society 197 at 216.
  • [4] Kirstie Ball, ‘Situating Workplace Surveillance: Ethics and Computer Based Performance Monitoring’(2001) 3(3) Ethics and Information Technology 211; and Kirstie S. Ball and Stephen T. Margulis, ‘ElectronicMonitoring and Surveillance in Call Centres: A framework for investigation’ (2011) 26(2) New Technology,Work and Employment 113.
  • [5] Ball and Margulis 116 (n 7). 5 Ball and Margulis 119 (n 7).
  • [6] 10 See usage of text messages and information posted on the website in the context of the BA strike ballotand dispute in British Airways v Unite (No. 2) [2010] IRLR 809—agreed to be permissible by the Court ofAppeal (after initial issue of an injunction at first instance on the grounds that this was insufficient notice).See also the UK Trades Union Congress (TUC) website in this regard: and the
  • [7] ‘Stronger Unions’ blog: .
  • [8] Kirstie Ball, ‘Workplace Surveillance: An overview’ (2010) 51(1) Labor History 87 at 96; also LindsayNoyce, ‘Private Ordering of Employee Privacy: Protecting Employees’ Expectations of Privacy withImplied-in-Fact Contract Rights’ (2011) 1 American University Labor & Employment Law Forum 27 at 28.
  • [9] For the latter, in a New Zealand context, see Rebecca Britton, ‘An Employer’s Right to Pry: A Study ofWorkplace Privacy in New Zealand’ (2006) 12 Canterbury Law Review 65 at 67 and 88-9.
  • [10] Simon Deakin and Gillian Morris, Labour Law, 5th edn (Hart, 2012) 302-4.
 
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