Member Article

The prevailing question is - do employees have the right to privacy in theworkplace?

Employees want to work in a safe environment without the fearof being constantly monitored by their employers. Consequently, employeesexpect that their privacy in the workplace is respected. On the other hand, employershave the right to protect their business interests against unwarrantedconsequences that would damage their business. This article seeks to discussthese two rights in the context of the use of social media in the workplace andthe issue of privacy attached to it.

Privacy and the use of social media at the workplace

In an employment contract, there exists an implied term which is known as theduty to maintain mutual trust and confidence. Employees and employers areunder a mutual obligation to mutually respect the trust and confidence in theemployment relationship and must refrain from acting in any way which willdamage this mutual relationship. Proponents of privacy rights have sought torely on this implied term of mutual trust and confidence to argue that employersare duty bound in law, to respect the privacy of its employees.

However, the proliferation of social media has resulted in the extensive use ofsuch tools and platforms at the workplace. Based on the implied term of mutualtrust and confidence, employers are advised not to engage in excessive monitoring of its employees without any justifiable reason. The issue of privacyis more complex in situations where the employees are required to spend areasonable amount of their time outside the office or perform work from home.

The right to privacy at the workplace comes with certain limitations. Whilstthe law recognizes the right to privacy at the workplace, employers still havea legitimate right to either use reasonable means to monitor its employees toprevent the abuse of office facilities or to enforce discipline. There are several situations where an employer may be justified to intervenewith the employee’s privacy at the workplace.

Excessive use of employer’s facilities and equipment to access social media

Where employees are found to have excessively used the company’s equipmentto gain access to social media, the employer would be justified to monitorthe use of the same.

It is to be borne in mind that the contract of employment between the employerand the employee is built based on the fiduciary relationship of trustand confidence reposed upon the employee. If sufficient evidence of a breachof the fiduciary relationship is found, the employee’s conduct may amount tomisconduct. Therefore, if an employee is found to have used the employer’sequipment excessively to gain access to social media, the same constitutesmisconduct at the workplace.

In a reported Industrial Court case, Employee A was charged for using theemployer’s telephone facilities to make numerous and long personal calls toEmployee B. Employee B was charged for being engaged in the personal calls with Employee B. Both employees were dismissed for misuse of the company’stelephone facilities. Having considered that the employees’ conducts wouldhave disrupted their daily duties, the Industrial Court was of the opinion thatthe employer had acted reasonably in dismissing the employees and held that:

“Both the claimants were employed to work for the company and tobe productive. It was never meant that for a substantial period oftheir office hours they could use that for personal calls and resultingin the reduction of productivity and efficiency in the office[1]

If the same line of argument is used against an employee who excessively usesthe employer’s property and equipment for social media purposes to the extent that such excessive use affects the performance and productivity at the workplace,then it is clear that the employer would have the right to monitor theusage of such social media at the workplace and take action where necessary.

The misuse of social media which affects the employer’s reputation orbusiness interest

An employer would be justified to take action against an employee where itcan be shown that the employee had posted a statement on the social mediawhich affects the reputation of the employer.

In the United Kingdom, the Employment Tribunal upheld the dismissal of anemployee who posted derogatory comments against employees and customerson her Facebook during working hours[2]. An employee in another case[3] metwith a similar fate after posting negative comments on his employer’s productsand services on his Facebook.

In Malaysia, the Industrial Court is likely to adopt the same approach in determining whether the act of an employee in posting comments on Facebook can constitute a just cause and reason for dismissal. In addition, the following is an authoritative text by B. R. Ghaiye that serves as guidance to the Industrial Court:

“… it would be regarded as an act of misconduct for which an employermay punish him by dismissal or otherwise, even if it occursoutside the working hours and outside the factory or place of business

of the employer, if the act:

(i) is inconsistent with the fulfilment of the express or impliedconditions of service, or

(ii) is directly linked with the general relationship of employerand employee, or

(iii) has a direct connection with the contentment or comfort of themen at work, or

(iv) has a material bearing on the smooth and efficient working ofthe concern.”[4]

Whist an employee may have a right to post his private comments on Facebook, such comments must not have the effect of affecting the reputation of the employer, even though the posting may only be circulated within the employee’s inner circle of friends. If the reputation or business of the employer is materially affected as a result of an employee’s Facebook posting, the employer would, arguably, be justified in taking action.

Conclusion

Undoubtedly, the employer’s right to protect the business interests and the employee’s right to privacy collide when it comes to the issue of social media privacy at workplace. To answer the question at the beginning of this article — yes, the employee does have the right to privacy. However, this right is not unlimited. The right to privacy must be balanced with the employer’s right to protect its good name, reputation and to ensure productivity of its workforce.

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For further information regarding Employment Law matters, please contact:

• Sivabalah : [email protected]
• Vijayan Venugopal : [email protected]

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[1] Noor Eliza Abd Halil & Anor v BD Agriculture (Malaysia) Sdn Bhd [2013] 2 ILR 602

[2] KC Preece v J D Wetherspoons Plc (UK Employment Trbunal Case No 2104806/10)

[3] Samuel Crisp v Apple Retail (UK) Limited (UK Employment Tribunal Case No 1500258/2011)

[4] B. R. Ghaiye, Misconduct in Employment, (1977), (2nd Ed.), (Eastern Book Company), p 615