Control as the basis of trust: how to monitor employees

The requirements imposed by the GDPR affect not only entrepreneurs but also employees. The amendments to the Labour Code will allow employers to decide on the introduction of a special supervision over the workplace or the area around the workplace, in form of a technical video recording solution. So how will the situation of employees change? And will the entrepreneur be able to apply employee monitoring without restrictions?

Current regulations do not specify whether (and if so, when) it is possible to use employee monitoring.

Opinions about admissibility of its use differ. Recently, more and more employers have started to use employee monitoring and these practical activities have in some way developed the scope of application:

• firstly, it is crucial for the employer to inform employees about the use of cameras, for example by including an appropriate provision in the work regulations;
• secondly, it is necessary for the monitoring to serve an important purpose. This purpose must be justified, e.g. workplace safety.

The popularity of employee monitoring has required for this issue to be regulated directly on the legal grounds. The GDPR, which will enter into force on 25 May 2018, provided an opportunity to make regulations in this area.

GDPR vs monitoring of persons

The issue of protection of employees' personal rights is stipulated in Article 88 of the GDPR. The European Union has authorized Member States to include more detailed provisions in national legislation. They are to ensure that protection of rights and freedoms in the processing of personal data. At the same time, however, it was pointed out that these provisions must include appropriate and specific measures to ensure the data subject is treated with respect for his/her dignity, as well as legitimate interests and fundamental rights, including for instance the use of monitoring systems at the workplace.

In Poland, works are currently underway to introduce a new law on the protection of personal data, which will also amend the Labour Code.

The draft Personal Data Protection Act of 12 September 2017, contains provisions regulating the issue of monitoring. According to the provisions of this draft, a new article (Article 224) regulating the issue of workplace monitoring will be added to the Labour Code.

According to the proposed regulation, the employer shall introduce special supervision over the workplace or the area around the premises in the form of monitoring:

• if he deems it necessary;
• to ensure safety of employees or the protection of property or confidentiality of information, the disclosure of which may compromise the employer.

Moreover:

• the monitoring shall not constitute means of controlling work performance;
• it shall not cover sanitary rooms, cloakrooms, canteens, or smoking lounges;
• the employer will be obliged to inform employees about the implementation of monitoring no later than within14 days prior to its launch;
• the employer shall process personal data obtained as a result of monitoring solely for purposes, for which it was collected, and shall store data only for the period necessary to achieve these objectives.

Even though the final wording of the amended laws is not yet known and the provisions related to monitoring may change, the general rules of the GDPR will require the implementation of such mechanisms on the national legislator, the application of which will require employers to define the purpose and principles of conducting employee monitoring.

*Author: Katarzyna Blachowicz, Attorney-at-law, Junior Partner at  GWW.