Employers are often tempted to monitor their business as well as their employees. There are often legitimate reasons to do both and with ample tools available in today's world (including monitoring software, surveillance cameras and various wireless recorders) the desire can go so far as to implement an environment of constant surveillance. However, caution is advised.
In Quebec, while the law recognizes that employees have a reduced expectation of privacy in the workplace (with certain exceptions such as washrooms and lockers), the Courts continue to struggle to balance the employer's right to protect its business with laws that govern an employee's right to privacy. These right to privacy laws include:
- Articles 35-41 Quebec Civil Code
- Sections 5 and 46 of the Charter of Human Rights and Freedoms of Quebec ("Charter")
- An Act Respecting the Protection of Personal Information in the Private Sector
As a general rule, constant video surveillance of employees in the workplace during regular work hours will likely be deemed an infringement of their rights under sections 5 and 46 of the Charter. However, video surveillance may be allowed where it is carried out for a legitimate reason and by reasonable means, such that employees' rights are infringed to the least extent possible.
Established criteria includes:
- Surveillance is based on serious and
reasonable grounds, for example:
- following repeated occurrences of theft, fraud, vandalism or harassment
[The objective should not be disciplinary control or performance monitoring]
- Surveillance allows to solve a problem that other investigative means are/were unable to solve; and
- Surveillance is as non-intrusive as
possible, for example:
- a camera pointed at a precise work station should not record others or other areas unnecessarily.
To determine if there was an infringement of the employee's rights, Courts will look to balance the interests of the employer and the rights of the employees and will weigh several factors, including:
- The location of the camera and the area it covers.
- The duration of the surveillance.
- The purpose for which the recording is used.
- The person who accesses (or can have access to) the recording.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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