Employers beware
Employers in Mozambique should be aware of the extent to which Mozambican law protects the employee's right to privacy, as a breach of this fundamental right could have serious legal and practical consequences for the employer's business. The new Labour Law (Act 13/2023, of 25 August), which came into operation on 21 February 2024, protects the employee's right to privacy under the following four broad headings:
Protection of Personal Data
Employers are, by operation of statute, prohibited from requesting or requiring employees or applicants for employment to provide information relating to the person's private life, unless there are specific requirements inherent to the nature of the job that require such information, by virtue of either the law or the practices of a particular profession. This prohibition expressly applies at the time of hiring a new employee and during the course of the employment contract, so employers should continuously ensure that they are, in fact, legally entitled to request various personal data from their employees or job applicants. If any personal data is requested, then the employer is required to provide written reasons for requiring the personal data to the employee/applicant before that person provides the data.
If an employer makes use of computer files and computer systems to store and access the personal data of job seekers and/or employees, then Article 8(1) of the Labour Law records that these practices will be regulated by specific legislation, so most employers will also need to have regard to what these specific regulations may require in each instance.
The final general protection accorded to personal data is that any personal data that is confidential, as well as any information whose disclosure will violate the employee's privacy, cannot be provided or conveyed to any third party without the employee's express consent, unless there are legal reasons for doing so without consent (for example, reporting a criminal offence concerning an employee to the Mozambican authorities). Employers are, therefore, advised to obtain broad written consent from their employees upfront, which will entitle them to convey personal and confidential information to third parties, should this become necessary during the course of the employment relationship.
Employee privacy in the context of medical tests and exams
Employers in Mozambique may generally (unless specifically prohibited by a legal provision) require applicants for employment or their employees to undergo or submit themselves to a medical test or examination. This must be intended to assess their physical or mental condition, either for the purpose of admission to employment or for the execution of the contract of employment. However, Article 9(2) of the Labour Law provides that the doctor responsible for administering these medical tests or examinations may not communicate any information to the employer other than the person's capacity to work (or the lack thereof).
Medical tests and examinations that are intended to determine the HIV/AIDS status of a job applicant or employee are specifically prohibited in Mozambique.
Can an employer use remote surveillance measures at the workplace?
The use of remote surveillance in the workplace is limited by the Labour Law, in the sense that it is only permissible when intended for the protection and security of people and goods, as well as when such use is part of the normal production process of the company or the sector in which the employer operates. "Remote surveillance" would typically refer to closed-circuit television ("CCTV") cameras, but the wording used in the Labour Law is wide enough to cover any "technological equipment" used to conduct "remote surveillance in the workplace".
If an employer is entitled to use any such technological equipment and does so, then that employer will be required to inform its employees, in writing, concerning the existence and purpose of the remote surveillance used. This is an important obligation to adhere to, with serious practical consequences for the employer: this is because the written notice is deemed to constitute legal proof that the employer duly complied with its obligation to notify the employees; and failure to do so will mean that any evidence acquired via the remote surveillance will be considered null and void under Mozambican Law. Imagine the frustration, as an employer, of having CCTV footage showing that one of your employees has stolen from your business, but being unable to discipline or dismiss that person for that wrongdoing because you failed to inform him/her in writing that you were using remote surveillance measures at the workplace, in accordance with what the Labour Law requires.
The employee's right to privacy of communications
The privacy of an employee's communications is also protected in Mozambique. This is referred to as the employee's "right to confidentiality of correspondence" and provides that "correspondence of a personal nature... effected via any means of private communication" is inviolable, except in cases expressly provided for by law. This legal protection would cover all manner of correspondence, including traditional letters, various types of electronic messages and e-mails.
The Labour Law does, however, expressly entitle an employer to establish rules and limits that seek to regulate the use of information technologies ("IT") at the workplace. This effectively refers to the need to have an IT policy at the workplace, and this policy must be set out in the internal regulations of the organisation. Because the statutory right to confidentiality of correspondence expressly refers to "correspondence of a personal nature", the internal regulations should make it clear that other types of correspondence (i.e. communications that are not of a personal nature) will not be protected. Moreover, these regulations should also make it clear that any e-mail accounts or message platforms provided or facilitated by the employer to its employees should not be considered "means of private communication" and should not be used by employees to transmit information of a personal nature. Accordingly, anything transmitted by or to an employee on the company's communication systems will not be regarded as personal or private and may be referred to and actioned by the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.