Big brother's here to help not just stoop

By Scott Wilson, Partner and Josephine Toop, Solicitor

First published in the NBR, 6 June 2008

We’ve all heard stories of surreptitiously videotaped nannies, whose behaviour is less than doting once the parents leave the house. In fact, in some parts of America worried parents pay companies to do the clever wiring for them.

But surveillance at work extends far beyond the childcare industry. Employees in all kinds of jobs may soon, or already, find that their phones, cars and computers are telling on them!

Aside from the more traditional cameras in the workplace, employers can now track workers on the move through GPS (Global Positioning System) technology in company vehicles or in mobile phones. Punch cards are being replaced with fingerprint technology. Desk-bound employees have their internet use monitored and employers can often access employees’ emails. Microsoft is even developing software that will monitor an employee’s physiological state as they sit at the computer, including whether their facial expressions are stressed or frustrated!

What’s next? Thought crime? Perhaps the world George Orwell envisaged in his famous ‘1984’ is just around the corner…

Surveillance has both drawbacks and benefits, but is it legal? What are an employee’s rights? How do employers avoid breaching workers’ rights?

As far as the “older” technologies like video surveillance and email/internet surveillance go, it depends on the circumstances.

Employers can generally conduct email and internet surveillance where they have a policy that makes it clear that email/internet use will be monitored and the policy has been brought to the employee’s attention.

Generally, employers also have the right to use video surveillance provided that they comply with the Privacy Act’s information privacy principles. Cameras can often be used without authorisation where dishonesty is reasonably suspected. But in other circumstances, the employee’s consent to such surveillance is likely to be required. Employers should also check whether there are other, less invasive ways of gathering the information.

Even if video surveillance reveals likely misconduct, employers still have obligations to treat staff reasonably and fairly – otherwise, they run the risk of a personal grievance.

It is not yet clear how the use of the newly emerging technologies will be legally regulated. However, it seems likely that the principles which apply to video and email/internet surveillance will be extended to cover them. Given speedy advances in the methods available for watching others, the legislators and the courts will ultimately be forced to decide – how far is too far?

Surveillance has benefits for both employers and employees. It gives employers tools to battle mysteriously high mileage on company cars, employee theft, and the hours of work time wasted surfing the net or bidding on Trade Me. It can also help identify if employees are using or taking the employer’s confidential data or their intellectual property, particularly if they have quit.

There are advantages for staff too. If a worker is harassed, the employer might be able to find video or email evidence to support their story. As for GPS tracking in cars or mobile phones, employers could help investigators when people go missing. Surveillance can also protect employees and help employers to fulfil their obligations in terms of Health and Safety by monitoring exposure to hazards.

And as for this new software, who knows? Rumour has it that a man sat dead at his desk in Europe for quite some time before anyone noticed. Maybe the computer will now be able to alert someone the instant an employee starts to experience health difficulties!

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