Question

From a legal standpoint, do employees have a right to privacy in the workplace? If so, what (specifically) is that right? From an ethical standpoint, should employers respect employees’ right to privacy in the workplace?

Answer 1

Ans. From a legal standard point,employees do have a right to privacy.

The recognition of a fundamental right to privacy, and the expected data protection law in India has private companies worried about the implications for them. While this decision of a European Court can hardly be expected to have a direct impact on workplaces in India, it draws the attention to practices such as employee monitoring and surveillance. Employers and employees alike need to be aware of surveillance which is and isn’t valid.

Privacy protections to employees under current laws

Under current privacy laws in India, employers are required to adopt reasonable security practices to protect sensitive personal data of employees, which is in their possession. This applies to a limited category of data like medical records, financial records, biometric information, etc. If a loss results to an employee due to lack of these security practices, the employee will be entitled to compensation under Section 43A of the Information Technology Act, 2000.

The forthcoming data protection law can be expected to have further implications for the collection, use and storage of employee data, including their communications

Impact of the fundamental right to privacy on the workplace

In the meanwhile, the recognition of a fundamental right to privacy by the Supreme Court can have implications for the privacy practices of employers. As discussed in a previous article, a fundamental right may be enforceable against private persons under certain circumstances. These include the enforcement of a fundamental right against private persons, issued in a matter of public interest. The Vishakha guidelines on sexual harassment are evidence of a fundamental right being enforced against workplaces in general.

It is thus very much possible for an employee to take an employer to court for practices which violate his fundamental right to privacy.

Workplace surveillance is legal

Employees must remember that it is unlikely that workplace monitoring and surveillance will in itself be prohibited. Globally, such practices, whether for the enforcement of discipline or for the protection of business interests, are generally considered to be valid. It is crucial, however, that the surveillance be reasonable, and that the employees be aware of the surveillance.

The European Court, for instance, describes the need to strike a balance between the employee’s right to respect for his private life, and the employer’s right to ensure the smooth running of the company. The general idea is to establish where employees can reasonably expect to have privacy, such as on their personal devices, and where they cannot, such as on work devices.