Informed Consent in the Workplace

The relationship between an employee and an employer is generally understood to be a consenting relationship, or at least it is generally understood that it ought to be a consenting relationship. It is generally accepted that employees are entitled to find out specific information about the conditions of their employment, including explicit information about the forms of electronic monitoring that are employed in their proposed workplace. It is also generally accepted that an employer is entitled to specific relevant information about its prospective employee. The widespread practice of a prospective employee providing an employer with a resume and references is a system intended to provide an employer with such relevant information before an employment relationship begins. The general acceptance of the aforementioned practices suggests that we are implicitly committed to the ideal of informed consent in workplace relations.

Although it may be conceded that the doctrine of informed consent is relevant to the ethical assessment of the nature of initial employment conditions, it might nevertheless be thought that the doctrine of informed consent is not directly relevant to the justification of electronic monitoring that is introduced to the workplace after the commencement of employment. The doctrine of informed consent in medicine and research involving human subjects is intended to frame a decision to provide consent. Once a decision has been made, and consent has been given, or denied , the doctrine drops out of direct consideration, or so it can seem. And much of the electronic monitoring that is currently being introduced is imposed on workers who are already in positions of employment. However, there are two ways in which the doctrine of informed consent remains relevant to consideration of the introduction of new electronic monitoring devices after employment has commenced. First, the consent of employees should be required before new surveillance techniques are introduced in the workplace, if this is in variation of the terms of an original workplace agreement. Employees and their union representatives should be entitled to use such a proposed variation as the basis for the renegotiation of wages and employment conditions. Second, we need to consider a variant of the usual informed consent process known as ongoing informed consent. ^{[ 6]} If a person is asked to consent to participate in a long- term medical or social science study, it may be difficult for that person to anticipate how he or she will react to that study. The person may discover, as the study progresses, that he or she reacts to it in ways that he or she was unable to anticipate before the study commenced, despite having been fully informed of the details of the procedure of the study. Because of the reality of this possibility, we acknowledge practical constraints on the implementation of the informed consent process and allow that one s initial act of consent may not be effective. Consequently, it is now standard practice in medical and social science studies to allow research subjects to withdraw from such studies without penalty. ^{[ 7]} It seems that the notion of ongoing informed consent is implicitly recognised in some common employment practices. It is generally recognised that a job candidate with a strong resume and references, who performs well in a series of job interviews, may nevertheless prove to be a substandard employee. In recognition of the practical limitations on the ability of employees to match candidates to jobs, it is common for employees to be employed on a trial basis for a period of time before an employer decides to consent to offer the employee permanent employment. It is also generally accepted that an employee may be unable to anticipate how the sense of job satisfaction that the employee actually experiences may change over the course of time. For this reason, inter alia , most employment contracts are written in such a way that employees are able to resign from their jobs without penalty, provided that they give their employers reasonable notice of their intention to do so.

In many workplaces, an employee performs a variety of different roles over the course of a career and may be subject to varying forms of surveillance as the employee progresses from one role to another. Because the employee is often expected to perform duties that are very different from the duties that he or she was originally employed to perform, it seems that the notion of ongoing informed consent is particularly appropriate in such workplaces. So, we have another reason to think that workers should not be subjected to new forms of electronic monitoring in the workplace without their consent.

^{[ 6]} See, for example, the National Cancer Institute s A Guide to Understanding Informed Consent (2003).

^{[ 7]} A similar argument could be mounted for no fault divorce.