Seems a long time ago that I blogged about the huge bulk of information that an employer might gather about an employee, and the issues that both parties need to be aware of in dealing with such information. I promised to write some more about what an employer could do with that information.
In my earlier blog, I used the example of a company vehicle with a GPS tracker, and data collected by the tracker outside of working hours which appeared to suggest the employee was spending inordinate time at a casino. What is an employer to do about that?
In an ideal situation, the employee’s use of the company car would have been initiated in accordance with some written policy that sets out the company’s expectations of the employee while using the vehicle, and deals with the fact of GPS tracking. It might contain a clause advising the employee of the use of GPS tracking devices, and explaining the reasons why the vehicle might be tracked (to ensure it is used lawfully, to monitor employee safety, to assist with accounting etc). A great policy would provide that the GPS may also record activities outside of working hours, and the employee would consent to that in return for the privilege of a vehicle.
In reality, that almost never happens. More often, the employer forms some suspicion and goes looking for the evidence to address it. Arguably, without consent from the employee, it would be unlawful for an employer to go looking for GPS data about the employee’s use of the vehicle outside of work without the employee’s consent. An employer would then be in the position of having to ask for the employee’s consent to access the information, or risk breaching the Privacy A
However, in an employment context, the parties have an obligation of good faith towards each other. This includes a duty on both sides to be “open, honest, responsive and communicative”. So, an employee might be obliged to consent to release of the information.
Let’s say the employer accesses the information, (and put the breach of the Privacy Act to one side). Assuming the employer wants to take action based on the information, it will be provided to disclose to the employee the information it holds. Whether or not that information can be taken into account depends on whether a fair and reasonable employer could use it in the circumstances. That it was obtained in breach of the Privacy Act might be a relevant circumstance, but it would not necessarily prevent use of the information.
Should the employer’s actions come to be reviewed by the Employment Relations Authority, then there is good reason to expect that the information will be considered by the Authority. This is because as an inquisitorial body, the Authority is not bound by the same strict rules of evidence as the Court.
So, employees should be aware that their employer may have a significant body of incriminating data that could be used against them if the occasion arises. Employers should be aware that although they might get away with using such information in a disciplinary context, they may also face consequences in the Privacy jurisdiction for doing so!
The best advice – look at your policies and review them if you think there might be a gap here!
#privacy #disciplinary #investigation #evidence #consultation #GPStrackers #employee
