The right to privacy and polygraph tests in the South African workplace

Abstract

In South Africa, employers use polygraph tests on their employees and the results are often regarded admissible as evidence in labour disputes. However, polygraph testing in the workplace is not adequately regulated by any labour legislation. The lack of adequate regulation creates a lacuna in South African labour law, which in turn has the potential to infringe upon an employee's right to privacy. Moreover, the absence of legislation on polygraph testing can be attributed to the fact that most of the South African legal principles in this regard are founded on common law. The common law does not provide a comprehensive legal framework for polygraph testing in the workplace. This study investigates the adequacy, or lack thereof, of specific provisions in the Employment Equity Act 55 of 1998 (hereafter the EEA); the South African Labour Law Guide, namely the Labour Law and Employment Manual; the CCMA Polygraph testing info Sheet 2002; and other sources of South African labour law. This study also analyses the extent to which the labour courts and the Commission for Conciliation, Mediation and Arbitration (hereafter the CCMA) have been able to develop their own guidelines where unique situations occur in relation to polygraph testing. In this study, it is argued that legal reform for polygraph testing is required to address the gap created by the lack or inadequate regulation of polygraph testing in the workplace. It is argued that because there are no clear guidelines to regulate polygraph testing in the workplace, there is a risk that the employers would abuse the provisions of the current legislative framework, particularly the EEA. Also, employers may seek to use the default provision for medical testing provided for in section 8(a) of the EEA. The South African labour courts have on several occasions illustrated that polygraph testing is inconsistent and that it may not have scientific basis. This study will also evaluate the extent to which South Africa complies with the obligations placed by the International Labour Organisation (hereafter the ILO) Labour standards in relation to polygraph testing and employees' right to privacy in the workplace.