Workers around the world are frequently subject to some kind of monitoring by their employers. Employers supervise work processes for quality control and performance purposes. They collect personal information from employees for a variety of reasons, such as health care, tax, and background checks.
Traditionally, this monitoring and information gathering in the workplace involved some form of human intervention and either the consent, or at least the knowledge, of employees. The changing structure and nature of the workplace, however, has led to more invasive and often covert monitoring practices which call into question employees’ most basic right to privacy and dignity within the workplace. Progress in technology has facilitated an increasing level of automated surveillance. Now the supervision of employee performance, behavior, and communications can be carried out by technological means, with increased ease and efficiency. The technology currently being developed is extremely powerful and can extend to every aspect of a worker’s life. Software programs can record keystrokes on computers and monitor exact screen images, telephone management systems can analyze the pattern of telephone use and the destination of calls, and miniature cameras and “Smart” ID badges can monitor an employee’s behavior, movements, and even physical orientation.
Employee polygraph testing has become a controversial topic, mainly because many people are not aware of what is legal and what is not legal. Employers often use polygraph tests to investigate specific incidents linked to misconduct, particularly where there is reasonable suspicion that the employee was involved. In addition to making use of a polygraph test in cases involving misconduct, notably other forms of polygraph assessment tests are also being used by some employers. Depending on the nature of the employment position being offered by the employer, an employee may be requested to undergo a polygraph assessment test to determine their suitability for promotion, or in the case of a prospective employee, whether the person should be employed by the company at all (pre-employment testing). The Kenyan Employment Act does not contain any specific provision on polygraph assessment.
No employee can be compelled to undergo a polygraph test. Employees must first give their written consent before they may be subjected to polygraph testing. Written consent may be obtained in advance by including a clause in their service contract in terms of which they agree to undergo polygraph testing if required, or the employer can obtain the employee’s consent at a later stage. Then the employee will have the option agree or to refuse. Refusal to undergo a polygraph test may not be considered to be an indication that the person is guilty, neither is it a valid reason for dismissal.
The Kenyan Constitution states that everyone has the right to inherent dignity, moreover the right to have their dignity respected and protected. It also provides that everyone has the right to privacy and freedom, including the right of physical security. Forcing an employee to undergo a polygraph test — without their written consent — can be considered to be an invasion of that person’s constitutional rights.
The Kenyan Constitution also sets out a number of labour rights and — in particular — the right every person’s rights to fair labour practices. Accordingly, employers must have regard to rules of fairness, equity and consistency in all of their dealings with their employees, not least also when subjecting them to a polygraph test.
 See Otieno v Stanbic Bank Kenya Limited 2013 2 EA