News
Private eyes in the workplace
First published in the Independent, 27 November 2008.
Imagine, if you will, a typical workplace scenario.
You run a factory, employing many dozens of employees. The workers use machinery which poses dangers for those who might be less than diligent in their work – or, worse still, under the influence of drugs or alcohol.
There is a manager who is responsible for the direct supervision of the employees, but she cannot keep an eye on them all the time. There are legitimate reasons for the employees to leave the factory floor from time to time, including going to the bathroom and moving product from one room to another.
But you suspect that some of your employees are indulging in inappropriate behaviour while they are away from her watchful gaze. There is suggestion that some may be smoking cannabis in the workplace. What can you do?
You do not want to put the employees on notice of your suspicions – because surely then they will simply amend their behaviour to avoid detection. You want to catch them red-handed.
And to do this, what better way other than to install a video camera. Nowadays, an expert can sneak in a device so tiny that it will never be detected, and you will surely get the information that you need to confirm your suspicions or confirm that they are baseless.
Precisely this scenario recently occurred in an American workplace. The employer was beer manufacturer Anheuser-Busch. The company installed hidden cameras without first informing the employees' union.
The cameras captured a variety of violations on video, including employees sleeping on the job, urinating on the roof of the premises, and smoking marijuana.
When the employer raised these different disciplinary issues with the employees concerned, their union counted with an issue about the legality of the installation of the cameras. Under the relevant American law, the installation of the cameras requires, as a prerequisite, bargaining with the union. On this rationale, the union says that the employer should not be able to rely on the information it obtained unfairly.
For its part, the employer says that, irrespective of its breach, the employees should not be given a "free pass" in respect of their misconduct.
The case has proceeded to a Circuit Court which is going to determine the matter.
The position under New Zealand law is possibly more settled than it appears to be under American legislation.
Under New Zealand's privacy law, an employer should ordinarily inform its employees (and their union) about the different ways in which it intends to collect personal information about them. In the ordinary course, therefore, employees should be told that cameras may be placed in the workplace, and that they may be filmed while performing their work (and doing other things in the workplace).
The law accepts, however, that from time to time covert surveillance may be justified. This can include cases where informing an employee about the prospect of surveillance may prevent the employer from being able to identify the suspected misconduct.
Covert surveillance was, for example, regarded as justified in a case involving an employee suspected of taking money from a till, and where a bus driver was suspected of engaging in inappropriate conduct with passengers.
The employer's licence is not, however, absolute. There are still some areas of a workplace which, because of their nature, may justify a reasonable expectation of privacy. For example, it is most unlikely that an employer would be justified in installing covert surveillance cameras in an employees' shower.
There is also a contrary view – that covert surveillance may not be helpful at all.
For example, in the Anheuser-Busch case, one view is that it would have improved the situation for the employer to inform its employees about its various suspicions and, rather than installing small covert devices, installing large, and easy to recognise, security cameras. The rationale is that the presence of obvious surveillance equipment may disincline employees to engage in inappropriate conduct in the first place.
This philosophy is, of course, contrary to the stated desire to "catch the employees in the act". To the contrary, it is a remedial action, intended to reform behaviour, rather than identify misconduct.
Different employers have differing philosophies on this issue – and it is difficult to provide any definitive guidance about the issues in this area. Put simply, each case has to be approached on its facts – and the best that an employer can be told is that there is are some inherent risks to it in engaging in covert surveillance.
The decision of the American Court in the Anheuser-Busch case will be viewed with interest, including by those lawyers in this country who advise on privacy issues.
