22 September 2016
The Office of the Privacy Commissioner of New Zealand (‘OPCNZ’) published, on 20 September 2016, a blog post summarising a recent case before the Human Rights Review Tribunal (‘HRRT’) regarding the alleged infringement of an employee’s privacy right by her two employers. Specifically, telephone calls made by the employee while working at two clinics owned by the employers were recorded.
Kathryn Dalziel, Partner at Taylor Shaw Barristers & Solicitors, told DataGuidance, “This case does provide a good guide to employers with respect to obligations when recording calls. Recordings should be for a lawful and necessary purpose. In addition, the employer should have a clear policy which is notified to staff to ensure transparency regarding who has access to recorded calls and in what circumstances.”
According to the HRRT, Principle 1 of the Privacy Act 1993 (‘the Act’) was not breached, since the information collected through the calls recorded by the clinics was necessary to ensure compliance with regulatory procedures. In particular, the recordings were necessary as evidence for regulatory investigations, as well as for checking the content of communications between patients and doctors, nurses and receptionists.
“The HRRT’s analysis and findings in the case are consistent with the OPCNZ’s Privacy at Work – A Guide to the Privacy Act for Employers and Employees 2008 (‘the Guide’) which provides that ‘an employer will need to let the employee know that calls will be recalled and what they can be used for’”, Hayley Miller, Partner at Kensington Swan, commented. “Interestingly, the HRRT did not mention the employer’s obligation to notify its customers and other inbound and outbound callers that the phone conversations were being recorded and for what purpose, which is generally required to ensure compliance with the Act.”
Interestingly, the HRRT did not mention the employer’s obligation to notify its customers and other inbound and outbound callers that the phone conversations were being recorded and for what purpose, which is generally required to ensure compliance with the Act
In addition, the HRRT decided that the employers did not breach Principle 3 of the Act as they effectively proved that reasonable steps had been taken by making the telephone recording policy available in both e-format and hard copy, and informing the employee that all incoming and outgoing calls on surgery telephone lines were recorded during a meeting.
Miller noted, “The evidence as to oral notification led the HRRT to believe that the employer had taken such reasonable steps to ensure the employee was aware of the collection by phone recording and its purposes. However, given that there were grounds for dispute on this point, a further step would be to obtain the employee’s written acknowledgement that she is aware of this policy and had read and understood it.”
A further point raised in the case by the employee was that the transcripts of her private conversations recorded by the clinics were disclosed when she was served with the appeal papers in the process of an employment dispute. The subject matters of the telephone calls included complete details of her credit card and discussions with her three young children. On this point, the HRRT noted that one of the purposes of the recordings was to monitor whether the work phone was used for personal communication.
Dalziel concluded, “Employers should be cautious in applying the Guide in this case to mixed personal and business use devices such as computers and mobile phones. There needs to be clear policies on use and access, and staff need to know what might trigger an investigation into inappropriate use such as a complaint or random audits.”
Ningxin Xie | Privacy Analyst