THE BOUNDARIES OF PRIVACY IN THE WORKPLACE

THE BOUNDARIES OF PRIVACY IN THE WORKPLACE

The Constitution of South Africa, 1996, enshrines the right to privacy for every individual. The right has been regarded as an extension of every person’s right to dignity and should also be respected in the workplace. However, like every other right in the Bill of Rights, it is subject to justifiable limitations. This article briefly explores the boundaries of the right to privacy in the workplace, in regard to certain specific areas that are most relevant.

Personal information provided to the employer

Employers may, through the normal working relationship, obtain personal information on their employees including, for example, salary and banking information, performance reviews or information on physical or mental health. The use of all such ‘personal information’ will also be subject to the Protection of Personal Information Act 4 of 2013 (“POPI“) (once effective) and must be appropriately dealt with by the employer. The employee may therefore expect such personal information to be protected within the bounds of POPI (and the Constitution).

Electronic communications and system use

The use of workplace email domains and other information systems resources provided by the employer are central to the day to day activities of many employees. The question arises as to the extent to which the use of such systems may be intercepted or monitored by the employer.

In terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA“) – which also applies to the use of workplace email / communications systems – any electronic communication, which includes email, may only be intercepted:

  • by anyone who is a party to the communication;
  • by a third party where they have the prior written consent of at least one of the parties to the communication, or
  • by an employer, where the communication relates to, or occurs in the course of the carrying on of such employer’s business

Therefore, your employer may monitor / intercept your electronic communications, without infringing your right to privacy, where you have provided your written consent for this (for example, in your employment contract or by written agreement to your company’s relevant policy document). In other circumstances, the employer will need a justifiable business reason to intercept the emails / communications – this will require a consideration of the circumstances in any particular case.

The extent to which an employer may intercept communications on a personal device used by the employee, where such communication may affect the business, is not settled.

The use of security cameras / CCTV in the workplace

A number of businesses employ the use of security cameras to ensure the protection of their property or even to, for example, encourage good employee work ethic.

Where such cameras are installed in a ‘public’ work area – an area where it may be expected that your actions could be viewed by others – this is acceptable, however, an employer may not install security cameras in a place where total privacy is expected (for example, a bathroom) without consent.

In any event, and having regard to the trust element that is integral to an employer / employee relationship, employers should notify employees of any security cameras that have / will be installed and the purpose or intended use of the footage retrieved from such cameras.

Conclusion

Given the importance of the right to privacy and the sometimes unclear limitations that can be placed on this right in the workplace, such limitations are best regulated by a formal workplace policy so that all parties are aware of and agree to all reasonable limitations.

The dos and don’ts of recording conversations

The dos and don’ts of recording conversations

There are several reasons why a business may want to record its interactions / conversations with customers: improving customer service; ensuring that employees always treat customers in the best possible way; ensuring easy customer follow-up and resolution of disputes; demonstrating accountability to customers; and aiding reliable note-taking.

Several businesses may not, however, realise these benefits as they are unsure of the legality and legal parameters of recording conversations. To clear up grey areas and enable you to grow and improve your business using all tools available, we have set out the basics of recording conversations in South Africa.

Am I (or is my business) allowed to record conversations with customers?

While, in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA“), the general rule is that no person may record a conversation without consent, the Act does set out certain exceptions to this rule. The exceptions include (and you can therefore record a conversation) where:

  • you are a party to the conversation (“single-party consent”);
  • you have the prior written consent of at least one of the parties to the conversation; or
  • the conversation relates to, or occurs in the course of, the carrying on of your business (“the business exception”).

It is important to note that the business exception is subject to further requirements in terms of RICA.

As a side note, certain businesses (specifically those in the financial services and intermediary industry) are legally required to record certain conversations with customers and to maintain such recordings for a statutory minimum period. This is however beyond the scope of this article.

Consent to record

As stated above, consent of at least one party to the communication is required when recording a conversation. This rule does not apply where the recorder is also a party to the conversation.

However, where a third party is recording the conversation, the third party must obtain informed consent from one of the parties to the conversation in order to legally record the conversation.

Guidelines for recording conversations

  • When recording conversations under the business exception, it is required that you make all reasonable efforts, in advance, to inform all parties that you will be recording conversations. It is good business practice to ensure and be certain that all customers are aware when conversations are recorded.
  • Use reliable technology to record and store recordings of conversations – you want to make sure that your customers’ (and your business’s) information is protected! In this regard, ensure that any recordings and storage thereof comply with all relevant laws (including, for example, the Protection of Personal Information Act 4 of 2013)
  • Maintain an effective storage system so that you can make the most use of your recorded conversations in developing your business

The article is serves only as a basic introduction to the topic of recording conversations and legal advice should be sought in relation to specific circumstances.