The prohibition of discrimination and harassment and the protection of employees’ privacy are not new in the Slovak legal environment. The Labour Code and the Anti-Discrimination Act from 2004 were designed to safeguard the maintenance of the principle of equality and the realisation of rights and duties. However, in practice, employers are still unprepared and unaware of their responsibilities in these fields.
As of January 1, 2013, and based on the case law of the European Court of Human Rights, the legal regulation of the protection of employees’ privacy has been updated. The employer is entitled to monitor the employees (e.g. by videotaping), to check e-mails and monitor phone calls only upon notifying the employee. Private post delivered to the name of the employee in the workplace cannot be monitored under any circumstances. If the employer wishes to establish a control mechanism, he must deliberate on this with employee representatives (if these are active at the employer). Any interference with the privacy of the employee must be justified (e.g. protection against theft), can last only for a specific period of time deemed as necessary and must be adequate and applied in line with the principle of equality.
The interference of the privacy of the employee can in some cases constitute harassment. Harassment is defined in the Anti-Discrimination act as one of the forms of discrimination (“conduct that creates or may create an intimidating, hostile, shameful, humiliating, degrading, disrespectful or offensive environment and whose intention or consequence is or may be the violation of a person’s freedom or human dignity”), i.e. based on grounds for discrimination (e.g. sex, age). However, harassment in the form known as ‘mobbing’ or ‘bossing’ may occur irrespective of the existence of the discrimination grounds and can still qualify as unacceptable behaviour (contrary to good manners), against which the Labour Code provides protection.
In terms of workplace harassment it is necessary to note the inverted burden of proof, which lies on the employer, who must provide evidence to the court that he/she has not interfered with the principle of equality (unlike the Civil Code, where the burden of proof lies on the plaintiff). So it is not only the responsibility of the employer, but also in his/her interest to prepare for solving such situations. The process should be initiated with preventive measures – by adopting internal regulations (in cooperation with employee representatives), by nominating a person who is trusted by the employees to handle such situations and organising seminars for the employees and their superiors. The employer must declare by means of these measures, that discrimination, harassment and unjustifiable interferences to the privacy of the employees shall not be tolerated in his/her workplace.
JUDr. Táňa Šefčíková is partner at the law firm Biksadský & Partners, s.r.o. and she specialises in the employment and anti-discrimination law.
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11. Mar 2013 at 0:00