Thursday, November 1, 2007

New Zealand

Surveillance and employee monitoring in internal investigations 

by Jennifer Mills
Minter Ellison Rudd Watts

It is becoming more common for employers to use surveillance footage as evidence in internal investigations. Employers must ensure such surveillance is obtained through lawful means and follow a procedurally fair process when dealing with such evidence in the internal investigation. 

Unlike other jurisdictions, there is no specific legislation governing the use of surveillance and employee monitoring in the workplace. Surveillance and the monitoring of employees’ email and internet usage, is governed by the Privacy Act 1993. Under that Act, an employer is required to inform employees of any monitoring or surveillance taking place, and explain the purpose of it. However, there are various exceptions, and an employer does not have to comply where informing the employees would prejudice the purpose of the surveillance or monitoring.

Employers must be aware that surveillance and employee monitoring can not be undertaken by unlawful means, or in circumstances which are unfair or intrude to an unreasonable extent upon the personal affairs of employees. An employer’s use of surveillance and monitoring must also be guided by their statutory duty to act in good faith in their dealings with employees.

Employers are able to conduct covert surveillance where there is suspected wrongdoing, and do not need to warn employees of such surveillance. However, the use of such surveillance must be justified, and an employer must restrict any surveillance so that it does not unreasonably breach an employee’s right to privacy (for example, they must not place cameras in changing or locker rooms).

In an internal investigation, employers must take care when using surveillance and employee monitoring as proof of employee misconduct. Employers must ensure that the evidence is sufficient if it is to be relied on as the basis of the allegation of misconduct. Further, such evidence must be shown to the employee, and the employee must be given an opportunity to comment upon it.