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Cell-phones as surveillance tools in the workplace
Major advances in technology mean that employers can now keep track of their employees' every move. Techniques available to employers include monitoring telephone, email and internet use, employee swipe cards, video surveillance, company vehicle global positioning devices and mystery shoppers to name but a few.
This ability to "keep an eye" on employees is, however, subject to the ubiquitous obligation of good faith. An employer must be careful to balance the prerogative to manage its business on the one hand, and the employees' rights to privacy on the other.
Generally an employee has the right to know that they are going to be monitored at work.
Issues arise where an employer carries out surveillance of its employees in a manner calculated to ensure that they are unaware it is taking place. Modern technology facilitates covert surveillance. It is easy for an employer to do and difficult for employees to detect.
Covert monitoring will often be more intrusive than other means and therefore the bar for its justification is heightened. Before installing hidden video cameras at work or secretly monitoring employees' phone calls, an employer must have reasonable grounds for suspecting untoward behaviour and for concluding that introducing the particular covert recording device is the only way in the circumstances to prove it.
Otherwise, a disgruntled employee who is disciplined as a result of a covert operation could take action. They could assert a personal grievance of unjustified disadvantage (or dismissal) disputing the disciplinary action and complaining of a breach of good faith. Alternatively, they could complain to the Privacy Commissioner on the basis of a breach of their rights under the Privacy Act 2003.
But what about covert recording by one employee of another? The Privacy Commissioner considered this issue in a recent case concerning an employer that relied on such a recording in taking disciplinary action against the recorded employee. The answer is that it will only be justifiable in rare cases and should be discouraged.
In this case, the individual responsible for the recording and the subject of the recording were both employed by a care agency to look after young people with disabilities (the clients). They worked as a team providing the care in the clients' own homes.
The first employee heard his fellow caregiver speaking to clients in an abusive and inappropriate manner and was concerned that he posed a safety risk to those clients.
Rather than reporting back to the employer regarding what he had seen and heard, he secretly used his cell-phone to record conversations between the abusive caregiver and clients and handed the recording to the employer. The employer then relied on the recording in disciplinary proceedings which resulted in a warning for the abuse.
The disgraced caregiver complained that the covert recording was in breach of principle 4 of the Privacy Act 2003. Principle 4 states that personal information must not be collected by means that are unlawful, unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned.
Marie Shroff, the Privacy Commissioner, characterised covert recording as "intrinsically intrusive" always requiring strong justification. However, on balance she found that there was no breach of principle 4 having regard to the severity of the concerns over the caregiver's behaviour towards clients and the fact that the clients were unable to protect themselves. They were potentially at risk. Accordingly, covert surveillance was justifiable to ensure that evidence was accurately captured, and was the best way of ensuring the safety of the clients.
Ms Shroff cautioned the employer in the above case that recording by co-workers should not generally be considered acceptable. She took into account the fact that recording had only occurred on one occasion and recommended that employees should be "strongly discouraged" from using their cell-phones to spy on their colleagues.
Health and safety is not the only legitimate justification that may "trump" an employee's right to privacy in the context of secret monitoring. Previously the Employment Relations Authority has allowed covert video surveillance in cases where the employer in question had reasonable grounds to suspect theft and this was the only way evidence could be obtained.
In practice, covert surveillance should be limited to obtaining evidence as part of a specific investigation and should cease once the investigation has been completed. Where possible, the number of people involved in such an investigation should be limited and only the minimum amount of information needed should be collected. Any information revealed which is not relevant to the investigation should be disregarded.
This case provides an example of a situation where covert recording was justified. However, employers should heed the Commissioner's warning and approach covert operations with care. Such action will only generally be justifiable where specific circumstances exist such as those contemplated above.
Another word of warning for employers is in relation to the procedure to be followed before relying on information collected covertly.
As with all disciplinary processes, an employee must be afforded an adequate opportunity to answer the allegations against them, including allegations attaching to actions or conversations which have been recorded. This means providing to the employee in advance of the disciplinary meeting detailed allegations together with the opportunity to view or hear the recorded material before requiring a formal response.
