Dr. Michelle O'Sullivan:

I thank the Deputy. The issue of the definition of surveillance is interesting. The definition can be different in employment relations as opposed to other fields. Monitoring and surveillance would have an interchangeable meaning in labour law and employment relations. We provided a definition in the survey so people would have understood it is about tracking of employee performance. We then asked them specific questions on it. It is an interesting issue.

On GDPR, there is a lot of debate about it and while it has taken privacy and transparency a step further from where they were, there are questions as to how applicable it is in the area of artificial intelligence in the workplace. For example, it mentions automated decision-making. There is a legal question as to whether people have a right to an explanation about decisions that are from automated decision-making. There is a legal question about semi-automated decision-making which the GDPR does not mention. There are different levels of automation of decision-making. One of the criticisms of GDPR is that there is a lot of focus on the procedural aspects of what should be done as opposed to the rights of workers. As I mentioned, there is no right to transparency over impact assessments that are conducted in the workplace. There are some ambiguities as to the level of applicability of GDPR in the area of artificial intelligence.

In terms of monitoring and what employers are allowed to monitor, there is a whole range of issues. I mentioned health and safety. There is a really excellent report by the European Agency for Safety and Health at Work about artificial intelligence in the workplace. The issue of health and safety is quite broad. We are talking first of all about physical safety but mental health is now a big issue when it comes to digitalisation and remote work. On things like bullying, one of the supposed benefits of monitoring or surveillance in the workplace is that it might help reduce bullying. Not everything is included in the report that we have. In our survey for the Financial Services Union Ireland we asked whether employees felt that having extra technological surveillance helped reduce bullying and only about 11% of employees believed that it did. We have to define what employers should be allowed to do. International documents refer to the threats to employee privacy and autonomy, which also comes into the area of health and safety. It is not a given in international legislation that employers should be allowed to monitor. I refer to the examples I mentioned earlier. In some countries there are very strict limits about any sort of level of monitoring, including remote surveillance. For example, in Portugal there are strict limits on the level of technological surveillance of remote working.

There is a legal question as to the legal basis upon which employers should be able to collect data on workers. Employers might be mistakenly thinking that having the consent of employees is enough as a legal basis. There is strong legal opinion that this is incorrect because of the inequality in power between employers and employees. For example, the European Data Protection Board, which is responsible for monitoring data protection, would say there is never a situation in which employees can freely give consent to offering data. That is an issue as well.