It is well known that a major part of labour law consists of balancing the rights and interests of the employer with those of the employees.

One of the evolving and topical aspects of this balancing act is the question of the employer’s power of direction versus the employee’s right to privacy. The right to fair and reasonable working conditions also comes into consideration. How, then, can the employer manage and operate its business while respecting the employee’s dignity and privacy?

Above all, a question of balance

Balancing these rights is an issue at several levels in the employment relationship, and involves determining the employee’s expectation of privacy according to the circumstances. Just think about topics such as monitoring employees’ physical appearance, pre-employment questionnaires, the right to request a medical examination, off-duty activities, screening tests, biometric or social media surveillance, and the protection of the employee’s personal or medical information.

This subject is indeed highly topical, particularly where, in the context of the COVID-19 pandemic, many workers are called upon to carry out their duties from home, a “haven” of privacy, sometimes called the “sovereign domain”. According to many, teleworking is here to stay.

It also appears that so far, the issue of teleworking has hardly, if at all, been defined by legislation in Quebec until now.

As a result, it is quite possible that many employers will consider investing in software or electronic tools to monitor or assess the productivity of teleworkers. The pandemic is arguably a springboard for the development of new technologies to achieve these ends.

Oversight leading to a union grievance

In a recent arbitral award, Syndicat des professionnelles et professionnels municipaux de Montréal et Montréal (Ville), 2020 QCTA 358, 2020 CanLII 53366, the union invoked the right to fair and reasonable working conditions and the right to privacy, two fundamental rights, in connection with the employer’s use of a surveillance software called “Graylog”. This software, basically a device ensuring the safe use of a company’s computer tools, monitored Internet sites consulted City of Montréal employees on the employer’s computers and during working hours. It allowed the employer to know which Web sites were consulted by employees and how often they visited them.

It should be noted that the facts of this decision are prior to the current pandemic.

The Arbitration Tribunal dismissed the grievance. In reaching this conclusion, the Tribunal considered, among other things, that the employer had a policy restricting the use of computer tools to work-related purposes, and had demonstrated the need to protect the City’s data and computer systems.

The Tribunal determined that Graylog “compiles data of a general nature, completely impersonal, anonymous, and moreover, drowned among data concerning thousands of users” [para. 53; our translation], which led it to state that even if an expectation of privacy still existed in such a case, the infringement of that right would be minimal.

The Tribunal considered that the employer had demonstrated the proportionality between the means chosen and the reason justifying their use, i.e. to identify potential situations of abuse.

As it is often the case in labour and employment law, decisions are made on a case-by-case basis.

One thing is certain: when balancing the employer’s right to manage and the employee’s right to privacy in connection with the implementation of electronic surveillance tools, the criteria of proportionality and rationality are at the heart of the analysis. The more an employer is able to demonstrate facts justifying the use of electronic surveillance or productivity assessment tools, the more it will be able to justify their use. Similarly, the characteristics of the monitoring or productivity assessment performed by software or other electronic tools will be critical to the analysis, including the type of monitoring or assessment, the frequency of observations, the type of data recorded, and who has access to the data.

Adopting a policy on the use of the Internet or electronic tools and making it known to employees is also key to reducing employees’ expectation of privacy while ensuring that monitoring this use will not infringe their right to privacy.