REPRESENTING EMPLOYERS AND EMPLOYEES IN OTTAWA, CANADA
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When Big Brother Goes Too Far: An Employees’ Right to Privacy

Despite our moral and legal right to privacy often employees’ are put in situations where they are required disclose personal information to their employers that they would prefer to keep confidential.  An employee who needs time off for treatment for a drug problem may disclose to their employer years of substance abuse; a worker may inadvertently through email exchanges confirm they are gay.  Disclosing personal information, while often necessary, makes an employee vulnerable.  The information may cause the employer to treat them differently or impact their reputation. 

Employees have a right to privacy within the workplace.  Confidential information should not be a topic of general discussion at the water cooler or anywhere else.  Personal information should only be accessed for the purpose it was given.

The landmark case of Jones v Tsige brought the issue of privacy and freedom from “intrusion upon seclusion” in the workplace to the forefront. Winnie Tsige and Sandra Jones’ were both employees at the same bank but at different branches. Ms. Tsige and Ms. Jones were involved with the same man.  Ms. Tsige formed a common-law relationship with Ms. Jones’ former husband. Ms. Tsige accessed Ms. Jones' banking history 176 times to determine her financial circumstances.  Snooping into a co-worker’s banking information was against bank policy. When Ms. Jones discovered Ms. Tsige was stealing her confidential information she sued Ms. Tsige for breach of privacy claiming damages.  The judge found that Ms. Jones’ right to privacy was breached and awarded her $10,000.  Interestingly the bank disciplined Ms. Tsige but was not itself sued for allowing this invasion of privacy to occur.

The case is a warning to employers that courts will punish intentionally invasive conduct.   While the law is still in its infancy stage, privacy obligations require employers’ to implement policies protecting confidential information.  Employers’ do not have a positive obligation to police their privacy policies;  they are entitled to assume  employees’ won’t behave improperly.    In foregoing an employee’s right to privacy, employers put themselves at risk of facing legal action where general, punitive and aggravated damages could be awarded.  Intrusion on seclusion not only clarifies the right to privacy in the workplace it also provides a road map for recovery for victims of privacy breaches. 

Employees have a right to privacy within the workplace.  In order to establish an invasion of privacy one must prove,

1.         The conduct was intentional or reckless;

2.         The employer invaded the employees’ private affairs unlawfully;

3.         A reasonable person would regard the invasion as highly offensive which could cause distress or humiliation.

 

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