The Office for Personal Data Protection (“Office”) investigated a complaint regarding the installation of a camera system for monitoring of employees. The employer assessed the risks of the system in its own way and decided to install functional cameras in permissible places (e.g. entrances to buildings) and to install non-functional cameras (fake cameras) in places that would certainly not tolerate the placement of functional cameras (e.g. sanitary facilities).
On the merits of the case
The Office recently dealt with an employee complaint alleging that the employer had violated data protection regulations by installing cameras in the workplace, where non-functioning “fake” cameras were placed in sensitive locations (e.g. toilets).
The Office concluded in its investigation in relation to the fake cameras that there was no breach of the general data protection rules. At the same time, however, the Office pointed out something that the employer in question had forgotten and is often forgotten in practice. Namely, the employer’s obligation to “create favourable working conditions and ensure health and safety at work.
He therefore referred the matter to the Labour Inspectorate, which then described the placement of dummy cameras in sensitive locations at the employer’s premises as a violation of the law and the creation of pressure on employees.
In the following article we will try to develop these considerations in a broader context.
Right to privacy
The right to privacy, human dignity and protection against unlawful collection of personal data are key civil rights. At the constitutional level, they are set in Article 10 of the Charter of Fundamental Rights and Freedoms and Article 8 of the European Convention on Human Rights. In general, the Civil Code protects against unwarranted interference with privacy, but it does allow, to a reasonable extent, the taking of visual or audio recordings if they are used to protect the rights and protected interests of other persons. At the European level, the area is regulated primarily by the General Data Protection Regulation (GDPR) and Directive 2016/680, which is incorporated into the Czech legal system by Act No. 110/2019 Coll., on the processing of personal data.
In the field of labour law, the protection of employee privacy has specific features that result from the nature of labour law and employment relations, as set out in Section 2 of the Labour Code, i.e. work as a relationship of superiority of the employer and subordination of the employee, performed on behalf of the employer (and under the employer’s responsibility), according to the employer’s instructions, performed by the employee personally.
The employee disposes of the property of the employer, who then bears the profit and loss from the employee’s work. Furthermore, except in specific cases, the employee has limited liability for damage caused to the employer.
The legislation should therefore find a balance between the employee’s right to protection of his or her privacy and to satisfactory working conditions and the employer’s right to ensure the proper performance of work on the other side.
Case law and previous practice
The placement of cameras and the taking of CCTV footage of employees have been widely dealt with by the courts. An important decision of the European Court of Human Rights, the 2019 judgment López Ribalda and others v. Spain held, that cameras in the workplace do not constitute an interference with the personal rights of employees protected by Article 8 of the European Convention on Human Rights, if a balance is maintained between the employees’ right to respect for their private life and the legitimate interests of the employer.
The opinion of the European Data Protection Board shows that it is completely unacceptable, for example, to place CCTV cameras in social facilities and in areas used for rest, regeneration or leisure.
A similar opinion was issued by the Office when Act No 101/2000 Coll. was in force, summarising the basic criteria for excessive interference with privacy. For example, the opinion describes the placement of CCTV cameras “in areas intended for purely private activities (e.g. toilets, showers) as completely unacceptable”.
Favourable working conditions
In the present case, however, the placement of merely non-functional fake cameras was not the case, i.e. there was no recording or live surveillance by cameras – there was no violation of data protection regulations. The fake cameras did not make any recordings, so there was therefore no processing of personal data.
However, according to the Labour Inspectorate, the above-mentioned procedure violated the Labour Code, specifically the provisions of Section 302(c) of the Labour Code, which deals with the obligations of managers, more precisely the obligation to create favourable working conditions.
Alleged surveillance of employees
We believe that there could also be a problem with the provision of Section 316(2) of the Labour Code, where the above procedure gave the impression of monitoring employees and thus may have interfered with their rights.
The provision in question prohibits an employer from violating an employee’s privacy in the workplace and common areas by subjecting him or her to overt or covert surveillance “without a compelling reason based on the specific nature of the activity”.
The commentary literature tends to conclude that the ‘special nature of the activity’ must be interpreted rather more broadly. It therefore includes, for example, the general protection of the life and health of employees or the employer’s property. It is certainly not possible to restrict this provision to particularly hazardous operations.
However, none of those criteria were met in the present case. The fake cameras were placed in the toilets and, although they were fake, their purpose was to give employees the impression that the area was being monitored. In our view, there is thus a violation of privacy without any actual recording being made.
Discriminatory conduct?
All employees are protected by law from discriminatory conduct, which includes harassment, creating an environment that has the effect of diminishing a person’s dignity, and creating an intimidating, hostile, degrading or offensive environment.
The relevant question is whether, in the circumstances, an ordinary person in the victim’s position could reasonably be expected to perceive the conduct in question as undesirable, objectively fulfilling the other elements of unworthiness set out in the statutory definition.
It should be stressed that the rights to protection against harassment and invasion of privacy at the workplace and the right to favourable working conditions are norms providing legal protection to employees, which, within the meaning of Article 1a of the Labour Code, protect public order. Therefore, any different arrangement or consent by employees to such conduct is excluded.
However, we are of the opinion that the elements of discriminatory conduct are not present in this case.
Recommendations and conclusion
In our view, it can therefore be generally recommended that employers should pay particular attention to the adequacy of measures when monitoring the proper performance of work.
Employers should:
- properly assess the risks of implementing processes for monitoring employees or protecting health and property;
- remember that the introduction of new processes in relation to employees is very often linked not only to the protection of their personal data but also to their rights as employees;
- always act proportionately; and
- consider whether a less invasive approach to controlling employees or protecting them from unwanted conduct is more appropriate.
It is also important to set up control mechanisms in such a way that they do not result in unequal treatment between employees. For example, it is easy to justify more frequent checks on an employee who performs less well than another employee.
CCTV systems can be placed, for example, in the production hall or at the entrances to the premises, but it is not acceptable for common rest areas such as the canteen or kitchen to be monitored around the clock, let alone toilets.
On the other hand, a personal random check of such common areas by a manager or a check of the employee at his workplace to see whether he is engaged in work activities during working hours is reasonable.
If you need legal advice on this topic, or on employment law or data protection law in general, please do not hesitate to contact us.
Mgr. Jakub Málek, managing partner – malek@plegal.cz
Jakub Veselý, legal assistant – vesely@plegal.cz
https://www.peytonlegal.cz/en/
25.05.2022