Corporate use of new technologies has not been aimed exclusively at productivity gains and economic development. Monitoring devices and data collection processes have been routinely used in order to control, evaluate, discipline and in some cases unlawfully discriminate against employees. In order to protect workers’ rights in the workplace, various international, institutional bodies have emphasized employees’ right to “respect for private life.” In addition, jurisdictions all over Europe have since been trying to find the correct balance between the rights of the employer and those of the employee.
Article 8 of the European Convention on Human Rights grants everyone “the right to respect for his private or family life, his home and his correspondence”. However, in Niemietz v. Germany, the European Court of Human Rights extended this fundamental right to privacy to activities of a “professional or business nature”, and it has been used ever since as a legal basis for privacy protection in the workplace.
General Principles Governing Privacy in the Workplace
Under European law, workers’ rights to privacy are balanced with the functioning of the company that employs them. The right of an employer to control his employees is a logical consequence of the hierarchical relationship between them. It is the use of data-collection devices in order to exercise such power that is strictly controlled.
European Directive 95/46 is a good example of the legislative framework within which data collection can occur. In order to be lawful, control methods must be used for “specified, explicit and legitimate purposes” and be “adequate, relevant and not excessive in relation to the purposes” for which they are used. Workers or workers’ representatives must also have knowledge of the methods used and give explicit consent. In addition, when analyzing the scope of a potential privacy intrusion, European courts typically analyze and weigh four key factors: the lawfulness, purpose, proportionality and transparency of the action in question.
This framework has been transposed into national laws and applied by national judges in several notorious EU cases, among which claims concerning video monitoring and internet use have been predominant.
Electronic Communications
Most jobs in developed countries require the use of an internet connection, placed at the disposal of the employee by the employer. Even though it is a working tool, limited private use is generally tolerated. However, excessive use of the internet for private purposes can undoubtedly affect the quality of an employee’s work, and the question of balance between the employer’s right to control and the employee’s right to privacy may arise.
For example, in a May 2000 decision, the Tribunal du travail de Bruxelles ruled that an employer has the right to control the use of electronic communications by an employee if that control is within the general principles governing data collection. However, the judge also found that the repeated use of electronic communication for purely private purposes does not necessarily constitute a serious cause for dismissal, even when the employee’s work is seriously impacted.
French judges recently found differently in a case where, as part of a security check-up of the company network, the employer realized that the employee’s work was affected by the amount of her private correspondence. The check-up was judged to be a lawful cause for reviewing the private communications of the employee. The volume of private communication was likewise held to be a lawful cause for dismissal.
In light of these issues, European-based (and other) employers are generally advised to implement a strict code governing internet use. Such codes and all the control measures attached to them must also generally be communicated to workers in order to ensure transparency.
Video Monitoring
Like electronic communications, the use of video cameras in the workplace must fall within the general principles that govern data collection, which must be strictly implemented.
For example, Belgian law states that video monitoring can only be used for the following purposes: health and safety, protection of company goods, control of the production process, or control of the workforce. Moreover, a video camera cannot target employees specifically. In France, it is not only the workers’ representatives that must be informed and give their consent – use of a video monitoring device in a private place must be declared to an independent public body when the images are stored in a database. In addition, use of the recorded images is restricted, and the data must not be stored for a period exceeding one month.
By way of contrast, video monitoring of company premises in which employees do not work (e.g. storage facilities) does not amount to a control measure and is not subject to the aforementioned principles.
Validity of Evidence Gathered Unlawfully
An employer who gathers information proving a worker’s misconduct may be tempted to use it as justification for the employee’s dismissal and as evidence in court. Problems, however, may arise when such evidence has been gathered via means that constitute a breach of the worker’s right to privacy.
For example, French jurisdictions tend to reject evidence gathered by data-collection devices used unlawfully. In a case heard in 1991 by the Cour de Cassation, an employee sued her employer for unlawful dismissal. The lower courts found that the dismissal was indeed lawful, based on evidence gathered with a video-camera hidden in a till. The Cour de Cassation overruled the decision and decreed that evidence unlawfully obtained could not be used against the employee.
Belgian jurisdictions held a similar view until a recent decision taken by the Cour de Cassation on March 10, 2008. Here, the judge found that unlawfully gathered evidence should not be automatically rejected, but could be taken into account when, for example, the infraction is more serious than the unlawfulness of the data-collection. The judge must, therefore, find a balance between the two infringing acts.
Conclusion
Under European law, the right of employers to control employees is strictly limited when such control is implemented via data-collection devices. Use of such devices must be done within the legal framework that protects workers’ rights to respect for their private lives, which requires extreme caution in determining the purpose and extent of private and other information to be collected.
For further information or assistance in complying with EU and other international workplace privacy protections, please contact any member of the McGuireWoods’ International or Labor & Employment teams, including attorneys in our Belgium, United Kingdom, Romania and Kazakhstan offices.