Article of the month
“RIGHT TO PRIVACY: DICHOTOMY BETWEEN EMPLOYER AND EMPLOYEE”

INTRODUCTION

The digital era has remarked a commendable level of growth in ease of doing business on one hand and on the other hand has raised issues of privacy and data protection of the individuals. Workplace monitoring and surveillance, whether for enforcement of discipline and/ or for the protection of business interests is considered to be valid worldwide. Though the legislations dealing with privacy and data protection issues of the individuals in India are still at infancy stage, however, the judiciary has always bestowed due importance to privacy rights by treating it as part of fundamental right to life and liberty. Recently, in a landmark judgment of Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors (“Puttaswamy”) (decided on August 24, 2017), nine (9) judges’ bench of Supreme Court (SC) unanimously upheld the right to privacy as a fundamental right. By delivering the said judgment, SC overruled its judgment delivered by eight (8) judges bench of the apex court in M P Sharma v. Satish Chandra, District Magistrate, Delhi ((1954) SCR 1077), and also overruled its judgment delivered by six (6) judges bench in Kharak Singh v. State of Uttar Pradesh (1964) 1 SCR 332, to the extent it says right to privacy is not part of right to life. While pronouncing the judgment, Chief Justice J.S. Khehar said “Privacy is intrinsic to the right to life and personal liberty under Article 21 of the Constitution and will be included under schedule III of the Constitution.” This article makes an attempt to examine the laws preserving workplace privacy of the employees and strike a balance between employees workplace privacy rights with that of the employers business interests.

RIGHT TO PRIVACY: CONSTITUTIONAL PERSPECTIVE

The Constitution of India, 1950 (“Constitution”) acts as a grundnorm to all the enacted legislations in India. The right to privacy also has emanated from Article 21 of the Constitution through various judicial interpretations. Right to privacy is directly seen as a facet of personal liberty of an individual. In the absence of legislation specifically dedicated to the employer and employee relationship, we may rely on judicial precedents laid down by the judiciary, legislation like Information Technology Act, 2000 (“IT Act”) enacted by the legislature to protect it.

Nevertheless, judiciary has conferred the status of fundamental right to the privacy rights of an individual, these rights are only enforceable against the state organizations by virtue of their being incorporated under part III of the Constitution. Justice Sanjay Kishan Kaul, one of the judges in the judgment of Puttaswamy has emphasized on the protection of privacy rights of an individual against both state and non-state actors. The Apex Court also acknowledged that the recognition and enforcement of claims qua non-state actors may require legislative intervention by the state. Further, the quorum of the Puttuswamy case has also made it clear that like other fundamental rights, even the privacy rights are not absolute. However, there must be serious compelling reasons to restrict the privacy of an individual, which can be determined on case to case basis and there cannot be a straight jacket formula to test the reasonability.

PRIVACY RIGHTS OF EMPLOYEES

Global Picture:

Various countries across the globe have regulations which give employers the right to regulate their employees but the same is always limited by the employees right to privacy. Electronic Communications Privacy Act, 1986 “ECPA”) of USA provides strong legal incentive for employers to codify and circulate computer use policies, reserving its right to monitor workplace documents. In order to maintain harmony between the employer’s right to monitor workplace files and the employees’ right to privacy, ECPA explicitly permits private email communications of the employees. In countries like Denmark, France, Germany, Italy and Sweden, employers may monitor emails marked by employees as “private” but may not look at the content without permission. In its recent decision of Bărbulescu v. Romania (decided on September 05, 2017), the Grand Chamber of the European Court of Human Rights (highest court of appeal) while giving shape to a rapidly evolving area of law at the intersection of technology, privacy and workers’ rights ruled that that companies can monitor their employees’ email if they are notified in advance.

Indian Scenario:

Article 51 of the Constitution and Section 12 (f) of the Protection of Human Rights Act, 1993 entrusts the state and national human rights commission to foster respect for international law and make recommendations for the effective implementation of human rights of which privacy right is an intrinsic part. The absence of legislation governing the protection of employee data or privacy of employees is felt from a long duration in India. The IT (Amendment) Act of 2008, incorporated Section 43A in IT Act which deals with compensation in case of any failure on part of the body corporate possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person. Further, Section 72A of the IT Act provides for protection of personal information and imposes punishment for disclosure of information in breach of a lawful contract (employment contract in employer employee relationship) or without the information provider's (employee’s) consent.

The issues relating to privacy of employees working in corporate sectors are broadly governed by Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“Rules”), drafted under the IT Act. These Rules outline the broader framework to protect sensitive personal data (which includes information pertaining to passwords, financial statements, sexual orientation, health condition, biometric information etc.) of the provider of the information (employees working in the private sector). The Rules make it mandatory for the corporate houses to have a policy in place to regulate the usage and transmission of sensitive personal data which will cover the sensitive personal data of the employees by the employer. The Rules obligate the recipient of the information to use the sensitive personal data for the specified purpose for which it was collected. The recipient of the information shall take consent of the information provider for the usage of such sensitive personal data for any other purpose than the specified one or for any disclosure of the data with third party. Also, the information provider shall have access to it at all points of time.

CONCLUSION

The technological advancements have blurred the line between workplace and personal activity, which has resulted into difficult situations of safeguarding employees privacy while protecting business interests. The newly developed practice of ‘bring your own device’, brings a different set of challenges, for e.g. an employee may be reluctant to follow the employer’s diktat on what activities are to be performed on his personal device or have company security and surveillance systems installed on his device. Considering the global scenario concerning privacy of employers and employees, we may conclude that though the privacy rights of employee are internationally recognized, the right of employer to workplace surveillance are also equally important.

Although the recent judgment of Puttaswamy has declared the right to privacy as fundamental right, which can only be enforced against the state organs, the judgment has also laid down India’s commitment to protect privacy of individuals recognized under international law (for e.g. Article 12 of Universal Declaration of Human Rights, 1948, Article 17 of the International Covenant on Civil and Political Rights, 1966 recognizes the right to privacy). Therefore, in order to create harmony between the employers right to surveillance and employees right to privacy at workplace, to bring uniformity in company practices and to provide remedy to employees in case of arbitrary invasion of privacy by the employer, the legislature needs to pass specific law dealing with workplace surveillance. Until then, the employers shall introduce the privacy policy guidelines to strike a balance between the management’s right and the employees privacy rights.

Top Stories

CABINET APPROVES INTRODUCTION OF THE PAYMENT OF GRATUITY (AMENDMENT) BILL, 2017

The Union Cabinet vide publication dated September 12, 2017, has given its approval for introduction of the Payment of Gratuity (Amendment) Bill, 2017 in the Parliament. The amendment will increase the maximum limit of gratuity of employees, in the private sector and in public sector undertakings/ autonomous organizations under government who are not covered under CCS (Pension) Rules, at par with central government employees i.e. Rs. 20 Lacs.

CLARIFICATION ON THE CODE OF WAGES BILL, 2017

The Ministry of Labour and Employment (“Ministry”) vide notification dated September 05, 2017, has issued a clarification note on the Code of Wages Bill, 2017 (“Bill”), clarifying that the central government has not fixed or mentioned any amount as “national minimum wage” in the Bill, therefore the apprehension that minimum wage of Rs. 18000/- per month has been fixed for all employees is incorrect, false and baseless. The Ministry has further clarified that the minimum wages will vary from place to place depending upon skill required, arduousness of the work assigned and geographical location.

DRIVE TO SETTLE CHILD LABOUR CASES

As part of the 10-day special drive, officials of the Labour Department in Andhra Pradesh (“Department”) has rescued fifty five (55) child labourers from different shops and establishments, who were presented in the open court organized by the Department on August 30, 2017, wherein an amount of Rs. 1.85 (Rupees One Lac Eighty Five Thousand Only) lakh was imposed as penalty on the employers, who engaged children for work. The Department stated that the amount would be paid to the children through banks.

INCREASE IN WAGE LIMIT UNDER PAYMENT OF WAGES ACT, 1936

In exercise of the powers conferred by sub-section (6) of section 1 of the Payment of Wages Act, 1936, (“Act”), the Ministry of Labour and Employment vide its notification dated August 28, 2017 has raised the monetary limit of wages to Rs. 24000/- (Rupees Twenty Four Thousand Only) per months for the applicability of the Act.

PROMOTION IN A PRIVATE ESTABLISHMENT IS A MANAGERIAL FUNCTION

High Court of Bombay in the matter of Lokmat Newspapers Private Limited v. Motiram, while quashing the order passed by Industrial Court, observed that it was necessary for the complainant to wait and watch and allow the management to consider his service record for promotion. The court held on August 21, 2017, that the promotion is a managerial and administrative function of the management and cannot be claimed as a condition of service.

MECHANISM TO CONDUCT SEXUAL HARASSMENT INQUIRY AT WORK PLACE

High Court of Delhi in the matter of Ashok Kumar Singh v. University of Delhi and Ors., decided on August 18, 2017, has issued the directions to conduct the inquiry in the matters of sexual harassment at work place. The High Court has ordered the Internal Complaints Committee (ICC) to complete the inquiry into complaints of sexual harassment against Ashok Kumar Singh, a teaching staff at Dyal Singh evening college, within three (3) months, while strictly abiding by the principles of natural justice by allowing the accused to cross-examine the witnesses through a questionnaire so that the identity of the witnesses is not disclosed.

AADHAAR MANDATORY FOR AVAILING BENEFITS UNDER THE AAM AADMI BIMA YOJANA (AABY)

Ministry of Labour and Employment (“Ministry”), vide its notification dated August 09, 2017 prescribed procedure for making aadhaar mandatory for availing benefits under the AABY, which is a consolidation of two Central Government social security schemes, namely, Janashri Bima Yojana and Aam Aadmi Bima Yojana.

Did you know?

Whether production incentive attract the provisions of Employees’ Provident Funds and Miscelleaneous Provisions Act, 1952 (“EPF Act”) ?

Hon’ble Madras High Court in the matter of Poompuhar Shipping Corporation Ltd. Tuticorin through its Managing Director v. Regional Provident Fund Commissioner (2017 LLR 24), while setting aside the order of the lower court/ authorities observed that since the incentive payment is a genuine production bonus scheme, the natural corollary is that it has to be excluded from the calculation of basic wages for the purposes of provident fund contribution in terms of the provisions of the Act.

Whether the Labour Court is entitled to settle the claim for disputed bonus and leave encashment under Industrial Disputes Act, 1947 (“ID Act”)?

Hon’ble Rajasthan High Court in the matter of Secretary, Ajmer, Merwara Gram Sewa Mandal, Ramganj, Ajmer v. Presiding Officer, Labour Court-cum-Industrial Tribunal, Ajmer and Another (2017 LLR 548), while observing the claim for entitlement of disputed bonus and leave encashment under Section 33 C (2) of the ID Act not maintainable, has held that jurisdiction of the labour court under Section 33 C (2) of the ID Act, is limited to computing amounts under heads to which the workman is entitled.

Whether non- production of attendance/ wage register would establish that the workman was in employment with the employer?

Hon’ble Delhi High Court in the matter of Mahanagar Telephone Nigam Limited v. Shiv Dutt  (2017 LLR 675), while holding the termination of the workmen illegal has observed that non-production of attendance register and payment of wages records by the management would establish the plea of the workman that he was on the rolls of the management from or on the alleged date.

Whether an employer can withheld the gratuity amount for non- vacating of quarter by the employee?

Hon’ble Madhya Pradesh High Court in the matter of Manager  v. Aminuddin (2017 LLR 803) while issuing the direction to the petitioner manager to pay an amount of gratuity held that gratuity which an employee earns cannot be withhehld subject to conditions as laid down in the Payment of Gratuity Act, 1972 and thus not for non-vacating of quarter allotted to the employee by virtue of his employment with the employer. The court also held that the employer is liable to pay interest upon the amount of payable gratuity for the delayed payment.  

Whether an employer is required to conduct an enquiry even in cases where the employee admits guilt?

Hon’ble Punjab and Haryana High Court in the matter of M/s Vibewell Techniks (Pvt.) Ltd. v. Amit & Another (2017 LLR 262), while dismissing the petition of the employer and upholding the order reinstating the workman with 40% back wages passed by the labour code held that the termination of a delinquent employee who has admitted his guilt, without conducting proper enquiry, is illegal being in violation of principles of natural justice.

Firm News

BUSINESS MANAGER HR MAGAZINE PUBLISHED ARTICLE WRITTEN BY MR. RAUNAK

In its September, 2017 edition of the magazine, Business Manager: HR Magazine (a widely circulated magazine since 1998) published an article written by Mr. Raunak Singh (Partner, Employment Laws) on dismissal of employees.

Contact Details:
Raunak Singh, Partner
E: raunak.singh@linklegal.in
M: +91 99107 73419

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