Belinda Beresford
South Africa’s Constitution should give employees more protection against curious employers than that enjoyed by workers in countries such as the United States and the United Kingdom.
But the extent of those rights to privacy entrenched in the Constitution have yet to be tested legally.
Labour consultant Andrew Levy says employee privacy is “an absolutely unpioneered area”.
While he thinks employers may have the right to search lockers and desks, this would have to be done openly with the employee present and consenting, and in the presence of witnesses.
But lawyer Halton Cheadle says employees’ possessions should be protected from rummaging hands and prying eyes, although this is still open to debate. If your employer owns the locker, can you own the locker’s possessions?
Cheadle says the constitutional guarantee of “bodily and psychological integrity” would not allow employers to test your blood or urine without consent.
However, you do have to obey the “lawful and reasonable commands of the employer”, as long as they are linked to your duties.
What exactly this means is still being debated, however. For example, would it be justifiable to test airline pilots for sobriety before they fly?
Collecting information from third parties should also be done with the consent of the employee.
The uncertainty would be whether refusal would justify a company starting disciplinary action or refusing to employ someone.
Phone-tapping is illegal in South Africa, although call monitoring – checking how long employees spend on the phone and to where – is allowed and common practice.
Privacy can extend both ways. Does an employee have the right to see what is on his or her company file? Yes, in some circumstances, such as disciplinary hearings.
A big area of controversy has been health, especially since many large companies run or manage staff medical aids. Does your employer have the right to know your HIV status or your predisposition to back problems? Perhaps, if it impinges on your ability to do your job.
Some people say if you are concerned about privacy you must have something to hide. But all rights have a nasty habit of being eroded unless reinforced.
“Use it or lose it” applies to all rights, so check any forms. For example, a life assurance policy may give the organisation the right to share the information with other industry members.
Also check to see where copies of letters are being sent.
One large medical aid apologised to a worker after letters asking for further details about medical conditions were copied to the employee’s salary department.
ENDS