CAN YOU NAME AND SHAME YOUR EMPLOYEES? BY LUSANDA RAPHULU

Wednesday, October 22, 2008
  • SHARE THIS ARTICLE

Employers are often faced with ongoing misconduct. They need to advise employees that offenders will face grave consequences in an attempt to deter possible future offenders.
 
This works well where employees have been dismissed and you want to publish the fact that they have been dismissed. But what about the situation where an employee has been given a warning and you want to use the warning as a deterrent? Can you broadcast a current employee’s disciplinary record?
 
The Draft Protection of Personal Information Act (POPIA) is relevant. While POPIA is not yet in place, it will likely come into force in the near future. An employee’s employment history falls within the POPIA definition of personal information. The processing of personal information is regulated by POPIA and would include the placing of personal information on notice boards or, even, logging a company-wide e-mail. POPIA replaces the common law on privacy and personal information.
 
There is a general misconception that personal information may only be processed with the consent of the individual concerned. Consent is one of the bases upon which processing may occur, but it is not the only one. POPIA specifically provides that personal information may be processed without consent where this is necessary for upholding the legitimate interests of the company.
 
It is, of course, highly unlikely that an employee would consent to the outcome of his/her disciplinary inquiry being released to the whole staff.
 
Demonstrating to the company’s employees that offenders of its rules shall be disciplined would amount to the company upholding its legitimate interests. Publishing the outcome of a disciplinary inquiry in these circumstances is unlikely to constitute a violation of the employee’s right to information privacy.
 
Personal information must be processed in accordance with the law and in a proper and careful manner in order not to intrude upon the privacy of the employee to an unreasonable extent.
 
Accordingly, if the aim of deterring certain conduct can be achieved by merely informing the staff of the nature of the transgression and the outcome of the inquiry – and without linking these to an individual employee – the employer should follow this route. Therefore, the name/s of the individual/s should, preferably, be withheld.
 
The less the detail about the individual/s concerned the better. It is important that the information released is complete, not misleading, up to date and accurate. Employers should inform the employee/s beforehand that the information is going to be released.
 
There are also issues of consistency in terms of releasing such information because the company:
·         Would not have a history of releasing such information; and
·         May only be inclined to take action against certain categories of employees.
 
It goes without saying that the employer should take care not to treat separate categories of employees differently. If it does, it should have cogent reasons for doing so.
 
If no prior relevant history of disclosure exists, the employer should communicate the exceptional circumstances prompting so drastic a move, adding that other sanctions may be published in the future if, in its opinion, such publication is warranted. 
 
Employers may understandably be concerned that employees could institute a defamation claim as a result of the publication of the misdemeanour. Such a claim is, however, unlikely to succeed because of the defence that the statement was fair comment based on facts that are true and are matters of public interest.
 
Case law has held that it is for the public benefit that the truth about the character or conduct of individuals should be known.
 
Employers are nevertheless cautioned that employees do have a constitutional right to privacy, though that right shrinks in the employment sphere. The courts have held that when one moves into communal relations and activities such as business and social interaction, the scope of personal space contracts.
 
The right to privacy has been interpreted as protecting an individual against:
 
·         Being placed in false light;
·         The disclosure of irrelevant and embarrassing facts;
·         Disclosure of information given or received in confidence by the individual; and
·         Disclosure of official information about that person.
 
Human dignity constitutes another reason for protecting privacy.
 
Hence, be very careful when dealing with employee personal information. Employers should only resort to publishing such information when this is really necessary and other attempted deterrents have not been successful.

Lusanda Raphulu is a Senior Associate in the Employment Department at Bowman Gilfillan.