Many employees are of the belief that they have a right to privacy in the work place. Some are of the view that communication sent via their personal email accounts cannot be touched by an employer. Some employers may be uncertain about just how far their right to monitor their employees extends, in addition to whether employees can be sanctioned based on their private communications.
Employees inevitably use their employer’s resources, especially the internet, computers and telephones, for personal use. It has been posited by some commentators that workers should not reasonably expect any privacy in the workplace because they are on their employer’s time and use the employer’s resources. Others are of the view that the fundamental human right to privacy protects an employee from unwarranted intrusion or monitoring by an employer.
The Charter of Rights gives all Jamaicans a right to “protection of privacy of…property and of communication”. Employers should note that the Charter of Rights does not only give rise to rights in relation to public entities. Private interactions between ordinary citizens are also governed by the Charter. Does this mean that employers cannot monitor an employee’s private emails sent from the company’s computers or over its network?
Employers should be aware that all rights in the Charter have limits. There are legitimate reasons for restricting an employee’s right to protect his or her personal communication. Such reasons must be demonstrably justifiable in a free and democratic society. Any restriction of this right must be proportionate to achieve a legitimate aim, such as ensuring that the employer’s devices and network are secure or to ascertain whether confidential company information has been transmitted to a third party or to conduct a legitimate investigation into allegations of professional misconduct. These aims would justify an employer accessing communication sent using personal email accounts on company devices or networks.
Employers have the right to sanction employees who use the organisation’s devices or networks to send communications if these communications breach company policies, such as the disclosure of the organisation’s confidential information. The right to privacy does not allow a worker the latitude to harm the organisation to which he or she is employed. Factors that would be considered in balancing the right to privacy with the employer’s legitimate aim of protecting his organisation would include: (i) whether there is a policy on the use of the organisation’s devices and networks (ii) the content of the communication and (iii) whether the communication was sent from a personal or company device. These factors go hand in hand with whether the employee could reasonably expect privacy if their communications are of legitimate interest to the employer.
When navigating this often controversial issue of employee privacy, employers should conduct the management of their organisations reasonably. Policies and practices should never be used as tools of victimisation or unfair intrusion into employee’s personal lives. Our courts have not yet interpreted the right to privacy of communication. Nevertheless, most persons can agree that an employer has general right to monitor an employee’s work activities. At the end of the day, the employee is accountable to his or her organisation.
Adrian Cotterell is an Associate at Myers, Fletcher and Gordon, Attorneys-at-Law, in the litigation department where his main focus is employment and labour law. He may be contacted at adrian.cotterell@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
