By: Wambui G. Muigai, Brenda Nyabinge & Victor Wanjohi
From the days of simple hand tools to the era of high-speed internet and artificial intelligence, the workplace has undergone an incredible transformation. During the Industrial Revolution, labour was intensive and demanding, with workers depending on grit and the proverbial ‘blood, sweat, and tears’ to get the job done. Fast-forward through centuries of innovation, and the modern workplace is brimming with mechanisation, automation, and the wonders of digital transformation. For the modern employee, technological tools are not just essential—they are the lifeblood of the workplace.
However, true to the Taoist notion that with every yin comes its inevitable yang, the rise of workplace technology has introduced a delicate dance between the employer’s drive for productivity and the preservation of employee rights. What once seemed like straightforward managerial oversight has evolved into a complex tension between corporate surveillance and the constitutional right to privacy.
Employee privacy is a vital aspect of the employer-employee relationship. Protecting privacy enables individuals to maintain a sense of autonomy, enjoy mental well-being, develop diverse interpersonal relationships and fully participate in a democratic society such as ours. The centrality of privacy to human dignity cannot be overstated. And it is for this very reason that the framers of our Constitution chose to enshrine the right to privacy in the Bill of Rights, making it binding not only on state organs but on all individuals alike, including employers.
That said, as with all rights, privacy in the workplace is not absolute. While employees may have legitimate expectations of dignity and personal space, these rights are not without their limits and as in many other aspects of the employment relationship, they ultimately remain subject to the employer’s prerogative.
From tracking keystrokes to monitoring emails and checking GPS locations, the employer’s prerogative to dictate how workplace operations are managed enables the modern employer adopt increasingly sophisticated measures in pursuit of efficiency and accountability.
In recent years, the boundaries of this prerogative, particularly as it impacts employee privacy, have been tested, and emerging jurisprudence offers invaluable insight for employers seeking to navigate the delicate balance between control and individual rights. Courts are increasingly being asked to assess the constitutionality of certain surveillance measures, and in making this assessment, they determine whether they are justifiable, proportionate, and conducted within appropriate statutory protections.
For instance, in the case of Mwangi v ABSA Bank Kenya PLC (Cause E065 of 2023) [2024] KEELRC 2399 (KLR), the Employment Court made it clear that even in sectors where integrity is paramount, employers cannot resort to intrusive surveillance methods to investigate employees’ private lives in the context of matters going on in the workplace. Accordingly, the court determined that hiring a private investigator to look into an employee’s personal life contravened that employee’s constitutional right to privacy under Article 31.
Conversely, when employees use employer-issued devices for personal communication, the expectation of privacy may be significantly diminished as held in Musa & Another v Makini Schools Limited [2015] eKLR. The Court determined that private communication stored on an employer’s computer is not necessarily protected under Article 31 since the employee’s expectation of privacy is lowered when using company property, in this case as a laptop belonging to the employer. The court further held that although personal, the WhatsApp messages in contest were stored on a device owned and controlled by the employer. For that reason, there was no violation of the right to privacy, as the messages were not held in a space over which the employees could reasonably claim exclusive control.
In arriving at its conclusions, the Court leaned on the reasoning applied in GJK v KPMG Advisory Services [2017] eKLR, which was the first to distinguish the treatment of company-owned versus personal devices as pertains the constitutional right to privacy. In that case, the Court held that while an employer may reserve the right to monitor communications and data on company-issued devices, the same does not extend to an employee’s personal device unless there is explicit, informed consent, which the employee remains free to withdraw at any time.
An interesting sidenote, is a ruling that was delivered by the ELRC at Nairobi to the effect that voice recordings of a conversation are not rendered inadmissible by the mere fact that the one party had not consented to the recording, in that instance the employee. In Pamela Asekenye Mallinga vs Girl Effect Services, ELRC Cause No. E566 of 2023 (unreported), the Court affirmed that the admissibility of such recordings is not automatically negated by lack of mutual consent; rather, it is for the Court to assess their probative value and assign appropriate weight.
This determination mirrors the position in Chitembwe v Tribunal Appointed to Investigate into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court [2023] KESC 114 (KLR) where the Supreme Court observed that as long as the recording is made by a participant to the conversation, and not by a third party, it is admissible in evidence. These decisions collectively affirm that Kenya is a one-party consent jurisdiction, and so both employers and employees ought to beware, either party can lawfully record conversations in which they are participants.
To sum, the jurisprudence emanating from the Courts is that the employer’s prerogative to implement surveillance mechanisms in the workplace is still subject to the privacy protections under Article 31. However, by the same token, employees must be vigilant as their expectations of privacy will be limited where personal communication takes place on workplace devices. To critically examine the current judicial approach, it is helpful to consider the constitutional underpinnings of the right to privacy and what it entails.
In Tumaz and Tumaz Enterprises Limited & 2 others v National Council for Law Reporting [2022] KEHC 14747 (KLR), the High Court described the right to privacy as the right of an individual to be left alone, to live free from unwarranted publicity, and to remain protected from unnecessary interference by the public in matters which it is not legitimately concerned with. Accordingly, the court held that an actionable cause of action for invasion of the right to privacy will arise where there is an unwarranted appropriation or exploitation of one’s personality, the publicising of one’s private affairs with which the public has no legitimate concern, or the wrongful invasion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.
When this reasoning is applied to the employment context, it invites a more nuanced approach. While employers retain a legitimate interest in monitoring the use of their equipment, ensuring productivity, and protecting their business interests, they must be careful to ensure that any measures they adopt in achieving these outcomes do not breach their employees’ reasonable expectations of privacy. The standard adopted in Tumaz would suggest that workplace surveillance should be analysed not only through a legal lens but also through the perspectives of fairness and proportionality, balancing the competing interests of ensuring oversight and maintaining the dignity of workers.
From the examined case law, in essence, the mere fact that an employee uses a workplace device or is employed in the insurance sector, for instance, does not extinguish their right to human dignity and privacy. Article 31 of the Constitution continues to offer protection against unreasonable intrusions into their private life, even within the employment context and any limitations should ideally be grounded in a clear and explicit agreement between the employer and the employee, as typically set out in workplace policies and procedures that define the nature, scope and extent of monitoring.
By the same token, however, employees must remain vigilant as the established position is that they cannot reasonably expect absolute privacy when using tools and platforms that are clearly owned, managed, and monitored by their employer.
As modern technology continues to blur the lines between personal and professional spaces, this evolving jurisprudence serves as an important reminder; that the workplace is not exempt from constitutional safeguards, and surveillance, no matter how well-intentioned, must be grounded in necessity, executed lawfully, and be mindful of the human rights at stake.