Monitoring of employess by employer

The legislator partially covers monitoring of the employees by employer by amending of applicable legislation. The Act No. 348/2007 Coll. amended the Act No. 311/2001 Coll. Labour Code, as amended (hereinafter referred to as the “Labour Code”) and significantly improved definition of the employers´ statutory rights and obligations when monitoring employees at workplace. Through the said amendment the Labour Code was extended by new principal stipulated in Article 11: “An employer may collect only those employee´s personal data which relate to the employee’s occupational qualification and professional experience of the employee and data which may be relevant from the perspective of work which the employee performs, will perform or performed.” An employer may not, without serious reasons consisting in specific nature of activities of the employer, interfere with privacy of an employee at workplace and common premises of the employer by monitoring of the employee without notifying the employee, and may not inspect letters addressed to the employee as a private person. If a monitoring mechanism is implemented by the employer the employer is obliged to notify the employee on the extent and forms of the monitoring. Besides the protection of employee´s privacy Article 11 of the Labour Code concerns also protection of the employee’s personal data (first sentence). With respect of monitoring of employees it is reasonable to assume that the second sentence of the Article 11 shall be construed in broader context and under the term “monitor” one should not understand only visual surveillance of the employees (e.g. through video surveillance) but also monitoring of the employees´ activities in broader sense, and thus, also monitoring of the use of work e-mail address, activities on Internet, supervision of the employee´s work telephone, etc., for example via specialized software.

However, not even the said amendment does answer various practical questions which both employers and employees have asked long before its coming into force. The deficiency of the amendment to govern more profoundly and in more detail the relation between the employer and employee when monitoring of the employees, echoes all the more, as it concerns a highly sensitive field of personal data protection, protection of right to privacy and protection of employee´s personality. In this respect it should be noted that right to privacy is a constitutional right (Article 16 of the Constitution of theSlovakRepublic) and may be limited only on basis of law, therefore, a prudent interpretation of the Article 11 is always recommended. Moreover, extremely limited amount of judicial decisions may be used to help clarify practical implication if the Article 11.

Through legal interpretation of Article 11 of the Labour Code a conclusion can be made that certain significant extent of monitoring of employees at workplace is legally admissible (in line with Article 16 of the Constitution of the Slovak Republic) upon fulfillment of the following criteria:

1. monitoring of the employee´s activities which interferes with privacy of the employee may be performed exclusively at workplace or common premises of the employer,
2. there exist serious reasons for monitoring which reasons consist in specific nature of the employer´s activities,
3. the employee is notified in advance on the monitoring, its extent and forms, and
4. monitoring does not take form of surveillance of letters addressed to the employee as a private person.

The first rule that the employer should take into account when monitoring an employee is that be entering the workplace or common premises of the employer the employee does not loose his/her right to privacy, the employee´s right to privacy may only become limited to certain extent stipulated by law. The above rule is a consequence of so-called “natural quality” of the right to privacy (in Slovak: prirodzenoprávna povaha) which characterizes right to privacy as sanctioned right inalienably belonging to each individual, the existence of which is not dependable on resolution of no state authority (no state authority is entitled to decide on its granting or deprivation). Moreover, in every state observing the rule of law principle the existence of the right to privacy is independent from any statutory (constitutional) norm, which on one hand may declare existence of such right (as does Article 16 of the Constitution of the Slovak Republic), but on the other hand does not constitute it, as each right of natural quality “naturally” and automatically belongs to each individual due to the mere fact that an individual was born (exists) and nothing more is required for such right to exist. Typical for all rights of natural quality, and thus including the right to privacy, is that its holder cannot completely waive it even on basis of his/her own free will, which, however, does not contradict the possibility of limitation of such right on basis of law and upon fulfillment of statutory conditions.

Ad a)

The statutory condition to perform monitoring of the employee exclusively at workplace or common premises of the employer results from the nature and purpose of such activity, i.e. to control/supervise occupational activities of the employee for the purpose of protection of employer´s proprietary rights, such as handling by the employee with means entrusted to him by the employer, compliance with work discipline, work processes, etc. Whatever monitoring outside workplace or common premises of the employer would contradict its purpose and, therefore, clearly be an excess.

Ad b)

Monitoring of employees is permissible only due to serious reasons consisting in specific nature of the employer´s activities. The Labour Code does not specify what should be considered as serious reason. When determining seriousness of the reasons for monitoring of employees the nature of the employer´s activities shall be of crucial help. Applying this logic, it may be concluded that there exist more reasons for monitoring of employees who work with dangerous or harmful substances, the manipulation with which requires increased level of work discipline and sophisticated work process, than monitoring of employees who work for employer manufacturing straw-hats. Considering the scope of business activities of the employee is, therefore of vital importance when evaluating seriousness of the reasons for monitoring.

Ad c) a d)

Monitoring of employees may be considered legitimate provided that the employer fulfills its notification duty towards the employee and informs the employee in advance on:

1. the existence of monitoring,
2. the extent of monitoring, i.e. what premises of the employer are being monitored, what activities of the employee are subject to monitoring, etc.
3. forms and manners of monitoring, e.g. video surveillance.

In practice the notification duty may be fulfilled in more than one way. First and the most practical way to fulfill the notification duty is directly through an employment agreement even before establishment of an employment relationship with the employee. In such a case it would be most advisable to incorporate information (acknowledgement of employee) into the employment agreement that monitoring of the employee takes place, where does it take place and in what forms and manners is it carried out. In the employment agreement the contractual parties may agree on details of monitoring, e.g. the entitlement of the employer to monitor received and leaving communication from a work e-mail address, number/frequency and length of phone calls on work telephone and the dialed numbers (not the content of conversation), etc. It is also advisable to agree directly in the employment agreement whether or not the employee is entitled to use the work telephone and/or work e-mail address also for private purposes, and if so, in what extent. Besides the employment agreement the employer may fulfill its notification duty also by means of collective agreement, to which the employee accedes to when concluding the employment agreement, internal regulations of the employer, work code, and other means of notification through which the employee reliably familiarizes with the fact that monitoring shall take place and in what form and manner.

With regards of the abovementioned, it is important to emphasize that even if there exist serious reasons for monitoring and not even upon fulfillment of the employer´s notification duty is the employer entitled to control/monitor letters addressed to the employee as a private person. In this relation a questions arises whether e-mails sent to employee as a private person shall fall under the same treatment. The Labour Code explicitly stipulates only ban of monitoring of letters addressed to employee as private person, but it is not entirely clear from its wording whether such ban may be extended also to electronic communication. Especially with regards to electronic communication through work e-mail address it can be reasonably presumed that the ban of monitoring shall not be implicitly applied also to control of the employees e-mails made by the employer. On the other hand, monitoring of employee´s private communication on the employee´s private e-mail address is absolutely inadmissible, as no relation of such communication with occupational activities of the employee may reasonably be presumed.

The situation becomes much clearer if the employee is obliged to use work e-mail address exclusively for occupational purposes. In such a case the employer may always argue that an e-mail sent to the work e-mail address is addressed to employer, and it is not the intention of the originator of e-mail to deliver such e-mail to employee as a private person but rather to employee as employer´s worker delegated with performance of certain work activities (similar logic may by applied in case if the employee is the originator of message sent through work e-mail address). Provided that statutory conditions determined by the Labour Code (Ad a) to Ad d) above) are met, an argument can be made that the employer actually controls its own electronic communication administered by the employee.

The employer´s entitlement to monitor employee´s e-mail communication is more complicated if the employer does not explicitly determinate (in a labour agreement or work code) that the employee is entitled to use the work e-mail address for occupational purposes only, or if using of work e-mail address by the employee for private purposes is explicitly allowed. In such a case the employee may reasonably expect an increased level of privacy when using the work e-mail address, and act accordingly. The European Court of Human Rights came to the same conclusion in case: Copland v. United Kingdom of Great Britain and Northern Ireland, when it alleged that violation of right to privacy declared in Article 8 (1)[1] of the Convention for the Protection of Human Rights and Fundamental Freedoms, occurs in cases when a monitored person reasonably anticipates privacy when using communication means, in particular, due to such person not being notified on the potential monitoring in advance (as presumed by Article 11 of the Labour Code).[2] The said conclusion should be considered as general rule which does not apply only to use of work e-mail address by the employee for private purposes, but also to work telephone, Internet browsing at work, etc. The European Court of Human Rights clearly considers protection of privacy and telecommunication confidentiality a value superior to interests of the employer when monitoring employee´s occupational activities and use of means entrusted to employee by the employer.

In practice a query may arise, how should a situation when an employee undertook (e.g. in a labour agreement) to use the work e-mail address for occupational purposes only, but despite that is a recipient of e-mail of clearly private nature, be handled. For instance an e-mail marked as “birthday party” or even more blatantly as “private”. If it can be derived from the object of e-mail or other circumstances that the communication is of private nature without connection to employee´s occupational activities, the employer is not entitled to familiarize himself with the content of such e-mail (contrary to e-mail of occupational nature). In case that the object of e-mail or other circumstances would suggest its private nature and the employer would (by accident) open it, then the employer should desist from reading it immediately. The above obligation of the employer is stipulated by applicable provisions of the Civil Code, including Section 13(1), pursuant to which an employee has the right to request that unlawful interference into his right to protection of personality be ceased, and thus, that the employer desists from reading employee´s personal e-mail.
On the other hand, the fact that the employer is not entitled to read employee´s private e-mails does not mean that no sanctions/consequence can be drawn for the employee´s conduct in contrary to labour agreement. Such employee´s behavior may be considered as minor breach of work discipline with all the consequences.
Naturally, the above conclusions do not apply only to monitoring of e-mail communication of the employee, but should by applied accordingly also to other forms and manners of monitoring, such as (i) video surveillance, (ii) monitoring of employee´s activities on Internet, (iii) monitoring of employee’s use of software, (iv) monitoring of work telephone use, and potentially also other forms and manners of monitoring.

For the sake of completeness, it should be noted that Slovak courts apprehend monitoring of employees especially through the prism of legitimate interests and expectations of the employer, and thus, in considerable extent, substantiate monitoring of employees. For instance, the Regional Court inBratislavain substantiation of its decision in case where the plaintiff – employee objected violation of her right to privacy by the defendant – employer, stated that: “The plaintiff´s appellate objection that the defendant violated the principles of protection of privacy at workplace is unjustified. According to court´s opinion no intrusion into privacy occurred. In course of judicial proceedings of the court of first instance it has been proven that the plaintiff used for sending and receiving of e-mails a notebook entrusted to her by the defendant as employer. I has also been proven that the e-mail address from which the plaintiff sent the said e-mails was established for the purposes of work communication between the plaintiff and the defendant From the very nature of work notebook and work e-mail address their purpose can be derived. The appellate court is of the view that the plaintiff should have used the provided notebook as well the e-mail address only for the purposes of fulfillment of work tasks and for work communication. Therefore, no intrusion into privacy may have taken place. For the sake of completeness, the appellate court considers it important to note that pursuant to Article 16 (1) of the Constitution of theSlovakRepublicand Article 11 of the Labour Code an employee is entitled to right to protection of privacy also at workplace. However, the employee´s rights have to be in balance with the employer´s legitimate interests.” In the above matter the court failed to consider the fact that the employee was not notified on the possibility of monitoring in advance, which should be viewed as a deficiency. In this particular case the Slovak court assessed the employer´s entitlement differently to the European Court for the Protection of Human Rights in the case of Copland v. UK, and also, differently interpreted the Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (provided that the court considered application of the Article 8(1) at all, as it should have due to the superiority of this document over the Slovak legislation).

Conclusion

In conclusion, it could be alleged that a thorough contractual arrangement of the entitlement for monitoring of employees by the employer, in particular in cases where intrusion into privacy cannot be completely excluded, is in employment relationships of essential importance. For the sake of legal certainty of both contractual parties and prevention against potential disputes, it is most advisable to notify the employee even before establishment of employment relationship that his occupational activities will/may be subject to monitoring by the employer and in what forms and extent. In this sense, an opinion may safely be adopted that the more detailed contractual arrangement of monitoring of the employee, the smaller is the likelihood that a dispute or conflict will emerge.

It is also equally important to note that sensitive approach should precede the execution of monitoring, as the fact that the employee uses means entrusted to him by the employer or that he/she is at workplace does not automatically entitle the employer to whatever interference with the employee´s privacy.

---

[2] „The applicant in the present case had been given no warning that her call would be subject to monitoring, therefore she had reasonable expectation as to the privacy of calls made from her work telephone. The same expectation should apply in relation to the applicant´s e-mail and internet usage“.