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PART 1: Employee privacy: What are the rights of an employer?

Where do employees’ rights to privacy end and the employer’s right to protect its business begin? What if the employer needs to protect its company from employee theft? Or have to protect it from slander through employee e-mails? These are just two of the circumstances that could force employers to invade employees’ privacy. However, before an employer does, it must make sure it knows what the company’s obligations are when it comes to employee privacy.

In South Africa, the recent bout of court rulings for company slander by employees on social networking sites like Facebook and Twitter could see a similar law come into force soon.

That does not mean an employer has the right to invade employees’ privacy. Even if the employer suspects them of slandering the company or stealing from it.

A company’s obligations when it comes to protecting employee privacy are as follows:

Is using employee information by an employer in any manner a breach of employee privacy?

The Protection of Personal Information (POPI) Act No. 4 of 2003 – assented to in November 2013 – places significant obligations and put some substantial duties on employers.

POPI’s purpose is to give effect to the constitutional right to privacy by introducing measures to ensure data subjects’ personal information, i.e. employees, is safeguarded when responsible parties, i.e. employers, process it.

Owing to the serious consequences that arise from non-compliance with this act, it is essential employers rigidly stick to POPI’s provisions by putting compliance procedures in place to ensure the obligations imposed on them are satisfied. If the employer breaches the duties imposed by POPI, it could be faced with an administrative fine of up to R10 000 000.

Employers must process employee personal information lawfully otherwise it could be seen as an invasion of employees’ privacy. In our next article, PART 2, we shall elaborate and focus, in more detail, on employer responsibilities regarding employee information.

Is installing security cameras to watch staff a breach of employee privacy?

Every employer is entitled to protect its property and can install security cameras in the workplace. ‘The question often asked is whether employees must be given notice of the security cameras or whether the security cameras can be installed without the employees’ knowledge. The answer to this question generally depends on where the security cameras are installed.

That means installing a security camera in a general office area is totally acceptable. Putting a camera in the company’s bathroom, on the other hand, will be seen as a breach in employee privacy.

Is monitoring employee e-mails a breach of employee privacy?

The Electronic Communications and Transactions Act of 2002 states that an employer may intercept the communications of its employees:

  • Where it is a party to such communications
  • Where the employees have given their prior written consent to interception; or
  • If the communication happens in the course of carrying on the business of the employer.

It is therefore suggested that the employer inserts a communication clause into its contract of employment to protect its rights and the employee’s rights to privacy. This will protect both in the event of a communication breach.

Thus, by understanding a company’s obligations when it comes to employee privacy, an employer would be able to monitor its employees without getting on the wrong side of the law.