Employers often wish to monitor or record their employees while at work, whether for safety, security, or other reasons. However, as recordings of employees while at work will constitute “personal information” of the employee, employee monitoring continues to receive scrutiny from the Privacy Commissioner, and can result in a range of issues for employers, including a finding that the monitoring has breached their employees privacy, or that they can not rely on recorded footage in disciplinary or other processes.
Recent Privacy Commissioner finding – New Zealand Post
Following a recent finding by the Privacy Commissioner that a posties privacy had been breached, New Zealand Post has removed all cameras with an audio capacity from its delivery vehicles. The postie was confronted by his team leader about phone calls he had made during his mail run, and about conversations he had with members of the public. Concerned about the audio recordings made by the cameras in his delivery vehicle, the postie complained the Office of the Privacy Commissioner, which upheld his complaint.
The Privacy Commissioner found that the audio recordings constituted personal information about the posties while completing their delivery work (for example, personal conversations with persons they met during their delivery rounds), and members of the public.
NZ Post considered that the audio recordings were necessary for the purposes of investigating incidents or accidents that occurred during delivery rounds. However, the Privacy Commissioner was not convinced that the continuous audio recordings were necessary for safety purposes, stating:
“Thousands of hours of footage were being collected about the delivery agents and members of the public, yet there were relatively few accidents. It was not clear that the audio recordings would prevent accidents or provide information that would lead to changes in safety policies”.
Therefore, the collection of the audio recordings was not necessary for the lawful purpose of NZ Post, and consequently a breach of Information Privacy Principle (IPP) 1.
As the posties were not made aware by NZ Post that cameras were recording audio during the delivery rounds, the Privacy Commissioner also found a breach of IPP 3, which requires agencies to make people aware that information is being collected, the purpose of collection, and the intended recipient.
In addition, the audio recordings were established to be unreasonably intrusive into the privacy of the posties (a breach of IPP 4 – which requires that the means of collection must not be unlawful, unfair, or unreasonably intrusive). The Privacy Commissioner’s view was that:
“The need to investigate possible incidents and accidents needed to be balanced with the posties right to maintain a reasonable degree of privacy and dignity, and that of the people with whom they interact as they make their round. The posties spend a considerable amount of time in the delivery vehicles and it would be unsettling for them, and unreasonably intrusive, to record audio during the entire time the vehicle is being driven”.
As a result of this finding, NZ Post removed cameras with an audio function from its delivery vehicles and amended its policies.
“How to” record employees while at work
With that finding in mind, it is still possible to monitor employees while they are at work – provided the IPPs are fully complied with. In particular, before undertaking any employee monitoring (including having cameras or audio recording in the workplace) employers must:
- Have a lawful purpose for collecting the employees personal information which is connected with a function or activity of the employers business;
- Only collect information that is necessary for that lawful purpose;
- Make employees aware that their personal information is being collected, the purpose for which the information is being collected, and the intended recipients of that information (we strongly recommend having a policy which outlines this information to your employees);
- Not collect information by means that are unlawful, unfair, or unreasonably intrusive to the employee;
- Ensure the recordings / personal information is stored safely and securely, for no longer than is necessary;
- Ensure employees are aware that the information is being stored, have access to, and can correct, that information if required; and
- Only use, or disclose, the personal information for the purposes for which it was collected – this often catches employers out when they attempt to use footage collected for health and safety or security purposes in a disciplinary process.
The importance to the employer of having cameras operating in the workplace must be balanced against an employees right to maintain a reasonable degree of privacy while they are at work. Employers should keep this in mind before they decide to operate cameras or other sorts of monitoring equipment in the workplace. We strongly recommend obtaining legal advice before employers undertake any employee monitoring, and before employers seek to rely on any footage taken of employee while at work in disciplinary or other processes.
Workplace Law team
If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:
Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green, Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Fiona McMillan
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