Throughout the employer and employee relationship, the employer obtains a large amount of information about the employee. The collecting of personal information about an employee or future employee begins at the interviewing process. Any personal information must be collected with a ‘lawful purpose’. For example, one is not required to disclose medical records unless they are relevant to the individual being able to complete work safely and competently. When personal questions such as this are asked, the employer must ensure that they protect the privacy of the applicant.
Employees have the right to ask employers for access to their personal files and other personal information held about them. The employer is required to give them access to this information, unless they have a legitimate reason to withhold it. This must be done within 20 working days. If an employer refuses to provide requested personal information, the employee should engage an employment lawyer.
Employers are within their rights to set up cameras and monitoring systems in the workplace in circumstances that are deemed reasonable. An example of when it would be reasonable is when theft is a problem or staff need to be protected from injury. The employer is required to inform employees of such recording. It is in the employer’s best interest to ensure that they approach the filming of employees with caution. For example, staff productivity may be lower if they feel they are not trusted.
Employees can find refuge in the fact that employers are not allowed to covertly record employees without careful consideration of the necessity to do so. However, occasionally an employer might monitor an employee without them knowing (if, for example, they were suspected of stealing) in order to gain evidence. If an employee feels that they have been covertly and illegally recorded, they should contact an employment lawyer.
If an employee is concerned about keeping their private life entirely private, the best advice is to use work internet and browsing services for work purposes only. Some employment contracts prohibit the use of social media or private browsing on work computers. Most contracts allow for a degree of personal use, as long as it does not disrupt the employee’s normal duties.
Employees should be informed if their email and internet usage is to be monitored.
The term ‘browsing’ refers to when an employee who is authorised to have access to personal information at work looks at that information without a legitimate reason to do so (such as out of curiosity). Access to personal information should be done on a ‘need to know’ basis, and signing a confidentiality form does not negate this.
Principle 5 of the Privacy Act says that all agencies are required to protect personal information by security safeguards that are reasonable in the circumstances. For example, employers can set up alert systems to let them know when information is viewed or accessed. In certain workplaces, this would be superfluous. However, in other workplaces, it is important to be able to see where personal files have been accessed.
In certain circumstances, an employer contacting an employee outside of working hours (when they are at home or on leave) can be a breach of privacy. However, there are times when it is reasonable for an employer to contact an employee.
This conduct includes, but is not limited to:
Off-duty contact and surveillance is only justified when it will be a legitimate concern to employers to the extent that such conduct may impact on that employer’s business. This is a principle that has been established in New Zealand case law in cases such as Excell Corporation Ltd v Stephens.
It is generally seen as a breach of privacy if an employer goes to an employee’s home without consent unless allowed by law to do so. This operates to the extent that, if the employer thinks the employee has stolen goods from them, they are still unable to go to their house without consent. Matters such as theft should be reported to the Police. If you are unsure whether you are engaging in contact that is a breach of privacy, it is in your best interests to engage one of our employment lawyers in Wellington.