Abstract
Employees in present-day workspaces encounter greater intrusion through continuous surveillance practices where their employer relies on technologies from closed-circuit television and vehicle tracking to safeguard their assets, oversee productivity, and investigate employees' conduct. Such practices reinforce the tension between an employer's managerial prerogative and an employee's right to privacy. In South Africa, the significant advent of the Protection of Personal Information (POPIA)1 provides a comprehensive scheme of data protection and presents a complex set of complications for workplace surveillance practices. This research examines numerous contexts of employee surveillance in relation to the grounds for processing as provided for in the POPIA, such as consent, necessity for the performance of a contract, and legitimate interests.
The research assesses whether each ground of processing is operative in the case of employer surveillance arrangements, noting how the conditions of first obtaining consent from an employee undermine the meaningfulness of consent, and in the second instance, the narrow scope of necessity related to a contract. The research provides emphasis on the last ground of processing
i.e. legitimate interest and applies the legitimate interest rule to several surveillance contexts systematically. It will also consider the practical implications of whether evidence obtained from surveillance, in violation of the POPIA, will be admissible in legal proceedings. Based on the integration of the POPIA’s principles with existing common law principles and the values contained in the Constitution,2 this research argues that the POPIA implies a necessary shift towards a rights-respecting and proportional approach to workplace surveillance that balances employer interests against an employee’s privacy rights.