Can an employer request biometric data?

Many employers are considering moving away from paper timesheets. Consequently, I regularly get asked by clients whether it is lawful and reasonable to ask employees for their fingerprint and/or collect biometric data (for signing in and out of work). This is particularly relevant for industries such as retail, construction, and manufacturing.  

Clients often want to know what the consequences are if an employee does not consent to the collection of this data. As with many directions to employees, what is considered ‘reasonable’ depends on the circumstances of each case.

However, if compliance with a request for fingerprints leads to a breach of privacy legislation (i.e. the Privacy Act 1988 (Cth) (“Privacy Act”)), it is likely that the employee can refuse to comply with the request (without being dismissed or disciplined).

It is commonly known that employees have a general duty to follow an employer’s lawful and reasonable directions. But what does ‘reasonable direction’ actually mean? A recent decision has provided some further guidance on this point.

What is ‘reasonable’ direction by an employer?

In Jeremy Lee v Superior Wood Pty Ltd, an employee refused to consent to the collection of his fingerprints by his employer, a sawmill operating company.

The employee refused to use biometric scanners, which had been introduced for registering employee attendance and tracking shift times (which is a common practice in many industries). The question asked of the Fair Work Commission (“FWC”) was whether this constituted a failure to follow a lawful and reasonable direction and, therefore, justified dismissal of the employee.

Initial Decision

Initially, the FWC noted biometric data was ‘sensitive information’ under the Privacy Act, which applied to the employer, and required it not to collect Lee’s information unless he consented to its collection.

However, the FWC also observed that it had been reasonably necessary for the employer to collect the biometric data for its functions or activities. The employer did not inform its employees the scanners collected their sensitive information, or discuss with them its obligations in handling their sensitive information. It merely informed them the scanners were being introduced and they would be required to use them.

Nevertheless, while there may have been a breach of the Privacy Act, initially the FWC did not consider the policy unlawful – just the way in which the employer tried to obtain employees’ consent may have in breach of the Privacy Act. The FWC said any such breach may be a matter that could be referred to the Australian Information Commissioner and Privacy Commissioner.

The employee was entitled to withhold his consent, which he did, but doing so meant he had failed to meet a reasonable direction from the employer to implement a fair and reasonable workplace policy. The employer dismissed him as a consequence for failing to follow a lawful and reasonable direction. Consequently, the employee’s dismissal was not considered unfair in first instance.

On Appeal

On appeal, the FWCFB considered the lawfulness and reasonableness of the direction. The FWCFB held the direction given to the employee (i.e. to consent to the collection of his biometric data) was unlawful as it was inconsistent with the Privacy Act. Therefore, the employee should be allowed to refuse to follow this direction. The FWCFB also determined the introduction of the scanners was not reasonably necessary for the employer’s functions or activities. Accordingly, there was no valid reason for Lee’s dismissal.

Key Take Outs for Employers

The FWCFB decision is a reminder to employers:

1. that directions to employees must be lawful and reasonable (if not, dismissal of an employee for failing to follow such direction will likely be unfair);
2. to have up-to-date policies which deal with biometric data, the Privacy Act and the collection of sensitive information;  
3. to regularly review its policies by experts; and
4. obtain advice implementing new policies procedures.

Need Specialist Help?

Managing a workforce can be difficult enough without taking into consideration the different rights of employees. Having up-to-date policies and procedures can greatly assist your business and avoid issues such as these. We can assist you to gain this understanding through:

• tailored training programs;
• providing comprehensive information packs; and
• reviewing/updating your policies and procedures.

For specialist assistance, Just call Workplace Wiizards on 03 9087 6949 (or email at support@workplacewizards.com.au)