Our office has been putting pressure on the Ministry of Labour, Employment and Social Solidarity (MTESS) for a long time by calling for more transparency.
We got our hands on a legal notice sent to social assistance employees following the instructions we give to our clients, including the instruction to record a conversation.
You can read below the notice that the Ministry sent to its officers.
Legal Notice on Audio, Audiovisual or Photographic Recordings
In recent years, several questions have been asked about the capture of an employee’s voice or image by a client of the Department, including compliance with the Access to Documents and Protection of Personal Information Act (Access Act). Employees wonder if they should accept the capture or if they can refuse and the consequences of either of these options.
It should be noted at the outset that the Access Act does not contain provisions to address this issue. In addition, to our knowledge, there are no ministerial directives on the subject. In addition, some legal opinions have been issued on certain aspects of this issue. That is why, in order to respond to your concerns and guide you in the decisions to be made, we present some guidelines or parameters as to the two situations that are most often brought to our attention. These elements are inspired by the legal opinions issued on the subject in recent years. However, each case remains a case in point that must be analysed according to the context and circumstances involved.
Audio or audiovisual recording or photograph without the consent of the employee concerned.
A customer records, films or photographs staff on the premises of the MTESS accessible to customers without first requesting permission.
Did he commit an illegal act?
- According to the case-law, this act would not be illegal.
If the customer publishes or disseminates the photo or recording or video, is he committing an illegal act?
- According to the case law, there may be an invasion of the employee’s privacy, which contravenes the Charter of Human Rights and Freedoms. On the other hand, depending on the circumstances (e.g., if the photo or video is accompanied by derogatory comments), there could also be reputational damage within the meaning of section 4 of the Charter.
If there were dissemination and invasion of privacy, would the employee have a remedy?
- The employee could claim damages by filing a civil liability lawsuit against the author of the image or the broadcaster if he is able to demonstrate the damage suffered. However, the costs of this lawsuit will have to be borne by the employee.
If there was dissemination and invasion of privacy, should the employer act?
- The employer is not obliged to take up the cause of the employee who decides to sue the author of the photograph. However, in order to ensure a healthy working environment, the employee’s manager may send a letter to the author of the broadcast of the recording asking him to withdraw the publication. Exceptionally, the programme of preventive measures relating to manifestations of violence in dealing with external clients may apply where all the circumstances surrounding the audio or audio-video recording of a staff member or the broadcast of sound or images resulting therefrom may be assimilated to an event endangering the health and safety of staff, such as a disturbance of public order, intimidation, threat of violence or death, etc.
Audio or audiovisual recording or photograph with the consent of the employee concerned
A client requests permission in advance or requires to record or film the interview to which they were summoned.
Is the employee obliged to accept?
- MTESS has a duty to act fairly towards customers. However, this duty does not include the obligation to accept the recording of the interview.
Can the employee consent to the recording of the interview?
- Subject to the approval of the manager and depending on the context and circumstances, the employee may accept the recording. However, from a legal point of view, the refusal to offer a service on the conditions required by a client who insists on recording the interview does not contravene the duty to act fairly. In addition, it would be wise for the employee agreeing to be recorded to also capture the conversation to ensure that the customer’s recording will not eventually be altered or distorted.
Warning for Welfare Providers
You should always be on guard when a welfare officer or investigator calls you for an interview. Indeed, the purpose of this meeting is usually to accumulate evidence against you by obtaining an incriminating statement from you.
Remember that the right against self-incrimination is a constitutional right recognized in the Charter and do not hesitate to exercise your right to counsel. For more information, see the following different articles:
- The Social Assistance Survey
- Misrepresentation or fraud
- When social assistance goes too far
- When social assistance does not apply the Charter
For further questions about your rights, contact Me Lambert for legal advice.