Co-authored by Orly Gerbi, Maayan Hammer-Tzeelon, and Marian Fertleman of Herzog, Fox & Neeman
Recent decisions in Israel have looked at the balance between employee privacy and surveillance by employers. The takeaway messages are that to be lawful, any intrusions on employee privacy must be reasonable, proportionate, fair, and undertaken in good faith.
There have been two recent developments on the issue.
The first is the National Labor Court's recent decision on appeal in Histadrut v. Municipality of Qalansawe. The court overturned a lower court's decision that an employer's requirement for employees to clock in and out of work using their fingerprints on a biometric attendance clock was legitimate.
The National Labor Court found that a balance must be achieved between an employee's right to privacy at work and an employer's managerial prerogative. It found that a person's fingerprint constituted "private information" and the use of a biometric attendance system harmed an employee's right to privacy and autonomy. As such, the employer needed to show either that consent had been given, or alternatively that there was a good legal reason for the action. With regard to consent, following the National Labor Court's earlier ruling on employee privacy in Issakov v. The State of Israel (focusing on the monitoring of employees' emails), the court held that consent had not been provided "informatively and willingly." Free-will is tainted, under the law, if there is any pressure placed on employees to consent to the monitoring of workplace activities, including sanctions for refusal.
When considering whether there were good legal reasons for the requirement, the court considered a number of factors: the purpose of using the fingerprint method; the nature, validity, and credibility of the biometric system; and proportionality. The court found that the system was not fully reliable and as such was not a proportionate way of measuring attendance. Accordingly, the court ruled, the employer should consider other methods less harmful to privacy. The court stated that while not every employer request to use a biometric attendance clock would be automatically refused, an employer's use of a biometric attendance clock must meet the strictest of terms.
The second recent development is the publication of guidance on the use of surveillance at work issued by the Protection of Privacy Authority, at the Ministry of Justice. The guidance emphasized the basic principles upheld in Issakov and the requirement that there is either informed and willingly given consent or the employer needs to have a good reason for the surveillance. The guidance states that, as with the monitoring of employee emails, an employer's managerial prerogative to use surveillance cameras is subject to requirements of reasonableness, proportionality, good faith, and fairness.
According to the guidance, cameras should only be used where an alternative, less harmful way of achieving the desired goal is not suitable. Thus, the guidance states, employers wishing to undertake video surveillance should introduce a transparent and clear policy on the subject, explaining when surveillance might be used and why.
It is clear that a balance must be reached between an employee's right to privacy within the workplace and an employer's wish to monitor an employee's activities for various reasons. Israel is witnessing an increasing emphasis on the protection of employee privacy as a fundamental right, and employers should be very carefully about compromising an employee's privacy unless it has instituted strict limitations on the surveillance.
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.