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Video surveillance of staff poses several legal questions

With all the high-tech surveillance tools available to suspicious employers, is there a right of privacy for employees in the workplace? Well, yes and no.

B.C.’s Privacy Act allows privacy rights in general circumstances that may or may not apply to the workplace. The right to privacy in the act is based on the reasonable expectation of the employee to privacy. The nature and degree of the employee’s right to privacy is viewed through all circumstances, giving due regard to the lawful interests of others.

But what happens to privacy rights when the employer uses video surveillance cameras in the workplace? More acutely, can video surveillance tapes be used in employment law disputes?

The circumstances and the lawful interests of others referred to in the act go some way to answering the question. Video surveillance cameras that are in plain view and known to exist are less likely to offend the act than those that are surreptitiously installed specifically for the purpose of catching an employee suspected of something. Additionally, the circumstances of the employer’s business will be a factor in determining the reasonableness of video surveillance in the workplace.

In certain employment contexts – such as in a bank – video surveillance of the public is well known. And where an employee is filmed in such circumstances, there can be no reasonable expectation of privacy.

To put an even finer point on it, the location of video surveillance within the workplace will be a factor as well. For instance, in a bank or other business where cash and financial transactions expose the employer to vulnerability, the presence of video surveillance in cash handling areas probably does not offend the employee’s right to privacy, because the employee has no reasonable expectation of privacy in those circumstances. However, in the staff washroom of the bank, the employee probably does have a reasonable expectation of privacy – and a video surveillance camera installed by the employer in that location probably offends the employee’s right to privacy.

These examples are black and white. What happens when the situation is grey?

In one case, an employee was suspected by the employer of sleeping on the job. Rather than confront the employee with the allegation, the employer chose to install video surveillance cameras in places where it was most likely to catch the employee in the act. In other words, the employer specifically installed video surveillance cameras in the workplace to attempt to catch this employee in an act of wrongdoing. One surveillance camera was installed in the lunch room. The employee went to the lunch room, where the surveillance cameras revealed that the employee was sleeping. The employee was fired. There was a lawsuit.

At trial, the admissibility of the surveillance tapes as evidence was objected to by the employee, on the basis of the right to privacy in the Privacy Act. The court found that the act creates a foundation for a claim in tort law for a breach of privacy, but does not bar the use of video surveillance evidence at trial. The court admitted the video surveillance tape into evidence, on the basis that the employee had no reasonable expectation of privacy in the lunch room. And that, even if he did, the surveillance tape was still admissible as evidence if it dealt with a matter in issue in the lawsuit. Since the very subject of the video surveillance tape was the fact of the employee sleeping, and since the basis for the dismissal and therefore the lawsuit was the allegation of sleeping, the video surveillance tape was admissible as evidence against the employee.

However, the judge in this case said something that should cause all employers to pause and think very seriously about the use of video surveillance of employees in the workplace.

The judge said that surveillance by an employer of an employee in an attempt to catch that employee in some sort of suspected wrongdoing – that would fall short of the basis needed for summary dismissal for cause – is itself a violation of the relationship of trust and confidence that underpins all employment relationships.

The underpinning of trust is a fundamental part of employment, and such trust can be violated by acts of the employee or acts of the employer. Where the employer does something that irreparably breaches the mutual relationship of trust, this can potentially lead to a wrongful dismissal claim by the employee.

Thus, employers can be liable to employees in tort for breach of privacy claims under the Privacy Act where circumstances warrant and the employee had a reasonable expectation of privacy, as well as in contract where video surveillance by the employer violates the trust relationship and leads to a wrongful dismissal claim by the employee.

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