Employer invasion of employee privacy

Publications >Employer invasion of employee privacy

 

To what extent and under what circumstances does an employer have the right to conduct surveillance in respect of the activities of an employee?  The vast bulk of employers conduct some degree of surveillance of their employees.  However when does the employers right to oversee the activities of their workers become an invasion of the employees right to privacy?  Monitoring employees and their activities can take many forms, ranging from the fairly benign, as in the case of the collection of personal details, to the perhaps more invasive forms such as covert surveillance, of emails, telephone conversations and the use of tracking devices.

The right of privacy is an individual’s right to control the collection, use and disclosure of personal information and concealment of it from unwelcome public examination or scrutiny.

 

Some years ago the Privacy Act 1988 (Cth) was enacted by the Federal Government and it introduced the process of regulating the collection, storage and use of private information.  It ultimately introduced 10 “National Privacy Principles” (NPP’s) as set out in schedule 3 of the legislation.  The NPP’s regulate the collection, storage and use of ‘personal information’ as well as an individual’s right to access and where appropriate correct such information.  Whilst ‘small business’ with an annual turnover of less than $3million is, generally speaking, exempt from the requirements of the Act it otherwise applies to other organisations which include, companies, partnerships, unincorporated associations, trusts as well as certain individuals. Some ‘small business’ having an annual turnover of less than $3million are not however exempt from the provisions of the Act.  For example a ‘small business’ providing health care services is not exempt.

 

The Federal Privacy Commissioner, appointed under the Act has a number of powers and can act on his own initiative in conducting investigations or otherwise following receipt of a complaint.  The Commissioner ultimately has power to make awards of compensation which can be enforced through action in the Federal Court.

 

A limited form of exemption from some of the provisions of the Act is granted in respect of certain employer records pertaining to past or present employees.  An employer is permitted to retain some health and personal records relevant to employees provided that those records pertain directly to the circumstances of the employment.  Records pertaining to such things as conditions of appointment, termination, membership of a trade union, etc are permitted.  However, records pertaining to an employee’s political or religious beliefs would not be covered under the exemption.  Similarly an employer’s retention of CCTV or other video footage of employees would not be covered under the exemption.  The Commissioner has however previously indicated that it is not contrary to the legislation for an employer to monitor employees use of email and other computer resources provided to staff provided that they are given clear notification of an employer’s policies in this regard.

 

Whilst there is some limited exemption for an employer to collect certain categories of information in respect of employees the Act imposes restrictions on the use and disclosure of such information.

 

There are numerous other statutory enactments at both State and Federal level which also have a significant bearing on the right of privacy in the workplace.  In 2005 the New South Wales Parliament introduced legislation giving employer’s the right to place their employees under surveillance under certain circumstances.  Under the Act an employer now has the right to conduct surveillance by notice to affected employees.  Provided that the employee is given the appropriate notice an employer is entitled under the legislation to place employees under camera or video surveillance or conduct surveillance of employees computers or place a tracking device on a vehicle or other thing used in the course of business. 

 

In addition to this the legislation provides that an employer can in certain circumstances seek authority from a Court to conduct covert surveillance without notice to an employee.  The Act simply provides that in considering an application for a ‘covert surveillance authority’ a Magistrate must be satisfied that reasonable grounds exist for the granting of the authority.  No such legislation currently exists in Queensland and therefore employer’s need to be conscious of other legislative provisions as well as developments in the common law.

 

State and Federal legislation restrict the recording and publication of private conversations and telephone conversations.  Under the Queensland Invasion of Privacy Act it is for example an offence to use listening or recording devices to secretly tape conversations without the consent of the parties.  If an employer is a party to a conversation then no such restrictions apply however there are limitations on what can be done with such recordings.  Similar legislation exists in other States.

 

Generally speaking it is an offence to attach listening or recording devices to a telephone system.  There are however certain limited exceptions to this, the primary one being the situation where both parties to the conversation are aware that their conversation is being recorded either for training or quality control purposes and give their tacit approval. In addition to the above legislative provisions there have been a number of Court decisions in the last decade which appear to be the genesis of the law of invasion of privacy.  In handing down its decision in Australian Broadcasting Corporation -v- Lenah Game Meats Pty Ltd the High Court appeared to lend its support to the establishment of the tort of invasion of privacy.  In the subsequent Queensland District Court decision of Grosse –v- Purvis, Judge Skoien found that an action for invasion of privacy could be established upon proof of four essential elements namely:

 

	A willed act by the defendant
	Which intrudes upon the privacy or seclusion of the plaintiff,
	In a manner that could be considered highly offensive to a reasonable person of ordinary sensibilities
	Which causes the plaintiff emotional or physical harm or distress or which prevents or hinders the plaintiff from doing an act which he or she is lawfully entitled to do.

 

In that particular case the Court ultimately awarded the plaintiff damages totalling $178,000.00.

 

Conclusion

 

This is a rapidly evolving area of the law and it is by no means straight forward.  Employers need to be weary of their employees rights to privacy and the ramifications in the event that those rights are breached.

 

Protective measures can however be undertaken.  Clear computer, email and telephone usage policies need to be formulated and made known to workers.  Where appropriate, surveillance policies need to also be put in place and made known to staff.  All such policies also need to be incorporated into employment agreements.

 

Needless to say employers should always ensure that personnel records are kept secure and are not able to be accessed other than by appropriate officers within the employer organisation.

 

Finally in order for employers to limit the possibility of being held vicariously liable they also need to ensure that staff are educated and made aware of their rights and obligations in so far as relates to the issue of privacy in the workplace.

 

Rostron Carlyle

 

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances."

 

 

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