And can he watch you using a camera system? Can he record your telephone calls at work? And can you be dismissed based on what he finds?
A person's right to privacy stands against the right of an employer to control the staff he pays. Society tries to protect the privacy of the individual and restrict the natural urge of employers to control them. New technology has allowed not only an enormous amount of time to be wasted at work but also sophisticated leaks of information, or the introduction of computer viruses onto employers’ property, which can cause them massive damage. The new amendment to the Slovak Labour Code deals with the relationship between the right to privacy and employers’ right to protect their property – at least partially. The amendment has shifted the rules on monitoring employees from their previous position as “principles” into the body of the law (Section 13), where they are now an inseparable and enforceable part of it.
According to these rules, unless there exist serious reasons relating to the specific nature of the operations of the employer, the employer must not interfere with an employee’s privacy in the workplace and in common areas by monitoring him, recording his telephone conversations on the employer’s equipment or by controlling e-mails sent from or delivered to his work e-mail address without having first notified him.
This old-new version of the employee monitoring rules brings at least two interpretive uncertainties. First, how does the condition of "serious reasons relating to the specific nature of the employer's activities" apply – is it a condition for any monitoring or just a condition for monitoring without prior notice to the employee? A more literal interpretation suggests the latter, while commentators seem rather inclined to the former interpretation. The difference is crucial, since it determines whether the employer must satisfy both conditions simultaneously (i.e. have serious reasons and notify the employee) or whether it is sufficient to meet just one of them.
I incline to the second interpretation. In the very specific and rare case of serious reasons relating to the special nature of an employer’s activities such an employer can monitor an employee even without his knowledge. Any other employer may only do so after warning his employees. This interpretation is more favourable for employers, but it is also in line with the literal meaning of the sentence and is logical. It is also supported by the original explanatory memorandum from 2007, when this rule was implemented for the first time. Why should the right of employers to protect their property be conditional on some specific operation that they should carry out? It is clear that the most common reason for monitoring – to prevent theft – occurs no matter what is the business of the employer and certainly not only in cases of “specific operations”. On the other hand, monitoring of an employee without his knowledge can still be legitimate (but only) in very specific businesses.
Another question of interpretation is what "monitoring” (“sledovanie” in Slovak) means and to what extent it is permitted. The law specifically describes checking of work e-mail and recording of telephone calls, making it clear that an employer can perform these activities once he has fulfilled the conditions. The explanatory memorandum specifically deals with monitoring by camera surveillance systems. However, it does not refer to the processing of such camera systems’ records. It will be interesting to see how the courts establish the permitted extent of monitoring in relation to the requirements of the Data Protection Act. The Data Protection Office considers audiovisual records to be sensitive data and requires written consent for their processing.
Another question concerns types of monitoring which are not specifically mentioned in the law or in the explanatory memorandum – e.g. checking of website logs. Is this also part of permitted monitoring? It is important to note that the privacy of the individual is not governed only by the Labour Code, but is subject to constitutional rights, protection by the Civil Code and protection by European rules. In my view, in each case the scope of the permitted monitoring could differ depending on the circumstances. Employers should follow not only the provisions of the Labour Code, but also meet the basic conditions set out by the European Court of Human Rights. According to such conditions, employers should, when limiting the privacy of employees, follow three basic principles: legality, legitimacy and proportionality. Any monitoring should be done in accordance with the law, for legitimate reasons and only to an extent proportional and justified by such reasons.
The amendment to the Labour Code requires that employee control mechanisms are also discussed with employees’ representatives. A control mechanism means a long-term measure or binding internal rule concerning monitoring of employees. When the employer wishes to introduce such a mechanism, he must discuss with employees’ representatives its scope, the methods used and the duration of such a mechanism and also provide information to employees along the same lines. Note that according to the new Section 12 of the Labour Code if there are no employees’ representatives present in the organization of the employer, he may act alone and introduce a control mechanism. But in any case he must notify the employees of its scope, type and duration.
To answer the introductory questions: Yes, your employer can read your e-mails or, at least, he can track to whom, about what and when you write and also from whom, when and about what you receive e-mails. He can record your phone calls. He can monitor you by using a camera surveillance system. However, he must notify you in advance that he will be doing so. If he meets all the legal requirements, he can use information obtained by such monitoring as a reason for terminating your employment. On the other hand, each employee can ask for the protection of a court if he thinks his employer has breached his privacy in contravention of the permitted conditions.
Source: Radoslava Janošovská, partner with ČERNEJOVÁ & HRBEK, s.r.o.
This article is of an informative nature only. For more information contact Radoslava Janošovská (firstname.lastname@example.org or + 421 2 52444019)
25. Feb 2013 at 0:00