It should be noted that the concept of employees as data subjects (‘DS’) is much wider than only current employees and can be extended to include former employees, temporary and casual staff.
Likewise records encompass books, drawings, photographs, films, negatives and generally the storage of visual images.
Interaction with recruitment companies must also be approached with circumspection be it related to information obtained and/or supplied.
Due to Covid, work from home (‘WFH’) has become the norm rather than the exception. The concern about actual work done by and the productivity of such employees, has resulted in employers monitoring employees in workplace through CCTV, biometric clock-in systems & internet & telephone use, login times, measuring keystrokes, tracking live locations, monitoring & tracking internet and email usage & take screenshots of employees’ desktop throughout the day. According to estimates from research firm Gartner, around 80% of companies worldwide have introduced a form of remote monitoring software on their employees’ computers (Feedspot April 25 2021).
It would appear that WFH is here to stay i.e.
According to a recent study from Boston Consulting Group (BCG), The Network, and CareerJunction only 4% of South Africans want to work completely on-site at an office after the pandemic.
Over 53% of South African respondents said they would prefer a job which permitted them to work from home on occasion, while 44% said they wanted to work fully remotely
(Feedspot April 25 2021).
Accordingly there is no doubt that WFH monitoring and other practices will require adjustments for existing employee contracts, some of which pertains to RICA (The Regulation of Interception of Communications and Provisions of Communication-related Information Act, Act 70 of 2002) which should of course have been in place now for a number of years!
How easy it is to fall foul of the requirement that excessive processing of PI must not occur is evident from the following EU caselaw – it was found to be a breach of the GDPR and resulted in a fine of 35million Euros!
The employer, H&M Germany had, for number of years, through one-on-one conversations between employees & their supervisors, been collecting & digitally storing employees’ personal information pertaining to holiday experiences, symptoms of illnesses, diagnoses, family issues & religious beliefs, in addition to meticulous evaluations of individual work performance. This information was partially recorded, digitally stored, detailed, updated over time, and could be accessed by up to 50 executives throughout the company.
In October 2019, all this information became accessible, companywide, for few hours as result of a configuration error, bringing to light H&M’s collection of information concerning its employees. It transpired that:
- H&M collected, recorded, stored and updated personal information (PI) of employees which could be accessed by a number of individuals;
- Employees were unaware that their PI (of very private nature, which they shared with supervisors on casual basis), was being processed as set out above;
- Employees were unaware of purpose for which PI, processed in this manner, was used by H&M; and
- appropriate security measures were not implemented to ensure integrity & confidentiality of employees’ PI, resulting in companywide access.
(ENSafrica OCTOBER 13 2020)
More about work from home (‘WFH’), employee contracts & liability issues in next ‘EMPLOYEE’ insert
© ADV LOUIS NEL
July 19 2021
DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances
LEGAL ADVICE CLUB ('LAC') - You can obtain specialized tourism advice from Louis (39 years in tourism) on an hoc basis via the COVID SPECIALS for SATSA, FEDHASA, ST&BA & TRAVELPEOPLE members (1) 10 minutes of pro bono (Free) advice via a phone call or e-mail and/or (2) by joining his LAC for which the joining fee & hourly rates have been reduced by 30% AND you can pay the joining fee over 3 (three) months! The fee for the 1st hour(per month) is now only R500.00.