The Employee as a Menace
As has been mentioned many times before, staff are an organisation’s biggest asset – but they can also be its biggest threat. Employees, and others, with access to confidential information have a significant ability to cause harm to a business. The ever-increasing use of social media also means that the lines between work and play are becoming blurred. Staff no longer always distinguish between information and comments made privately or publicly.
They may underestimate the relevance of comments put on social media and fail to appreciate they are disclosing sensitive, sometimes highly confidential, information about their employer. What may be a gripe about a colleague’s behaviour when spoken of casually with friends is a different issue when posted for all the world to see. An employee’s personal opinions may become an issue for their boss if linked to the organisation the person works for.
To add to the mix, mobile working and technology’s growing sophistication mean employees often work on the move. Hong Kong-based staff may work across several countries. Devices they own are frequently used interchangeably for work and leisure. Confidential data and information may be held on personal devices which are also used for work-related activities.
The Surveillance Solution
Monitoring and controlling staff access to employer data is difficult during their employment. It can become even harder when an employee is leaving and they may not be overly co-operative. In many sectors, there are also onerous obligations to customers and clients with regard to the use and protection of their personal data. Meeting these obligations when a vast number of staff may have ready access to such data is a challenge.
In addition, employees face the temptation to move to new companies to further their careers or simply get better rewards. Potential new employers may gain significantly from information a new hire can bring. The line between maximising their talents and using information and knowledge rightfully owned by a former employer can easily become blurred.
It is little wonder that employers want to know what is going on. They are often too late in finding out that a staff member has been behaving badly or disclosing confidential information after their employment ends. This leads on to the issue of keeping an eye on staff activities during the course of the employment relationship.
The debate about the validity of employee monitoring and surveillance, and just how far employers should go, is a controversial one. Unsurprisingly, there are many different views on this question. The issue of weighing the complex balance of individual privacy against the protection of legitimate employer interests is in a continual state of flux. Different cultures and legal frameworks approach this balance in a variety of ways.
Hong Kong’s long-established privacy legislation works in conjunction with guidelines issued by the Privacy Commissioner addressing the issue of monitoring at work. These do not have the force of the law, but are taken into account when looking at the suitability of the actions taken by the employer.
In essence, before adopting a policy of staff monitoring and surveillance, there are three key issues an employer should consider. First, they must assess the risks that staff monitoring seeks to manage and the benefits that will be achieved. Second, they should consider alternatives which may be less intrusive, but just as effective. Finally, they must always bear in mind that accountability rests with the employer in relation to handling the personal data obtained through the monitoring process.
When it comes to covert surveillance it is even more important that the issues addressed by the proposed surveillance or monitoring are considered carefully. Covert surveillance should be implemented where it is the only remaining option, and where it can be carried out without harming the employer’s interests or undermining the monitoring or surveillance itself. When coming to such a decision, it is critical that employers articulate the basis of the decision and keep a good record of the decision-making process itself.
The Conclusion
“Big Brother” may indeed be watching the workforce. But as long as the employer has duly considered the monitoring and surveillance measures which it proposes to put in place, and communicates this to staff to the extent possible, this is likely to be acceptable under Hong Kong law.
However, the issue of whether such monitoring or surveillance contributes to a positive working relationship between the employer and staff remains a much broader debate.
DLA Piper is a global law firm with 4,200 lawyers located in more than 30 countries throughout the Americas, Asia, Europe and the Middle East.
Pattie Walsh is a partner and head of DLA Piper’s Asia-Pacific employment practice. She writes extensively for legal and HR publications, with a particular focus on multi-jurisdictional employment work.
The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.
