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Izabela Kwacz

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The GDPR has been in force since 25 May 2018. The regulation has forced numerous legislative changes to meet the new personal data protection requirements. As a consequence, the Labour Code now includes new provisions on employee monitoring.

Before the GDPR came into force people were afraid that no workplace monitoring would be allowed at all. However, the concerns have turned out unfounded and the debate on the subject has brought about regulations on how and for what purpose the employee monitoring is permitted. Like the GDPR, the new Labour Code provisions have been in force since 25 May 2018. They have introduced two types of employee monitoring:

  • workplace and premises monitoring;
  • email monitoring. 

The Labour Code allows also other surveillance methods, provided that there are legitimate grounds to use them. Those other surveillance methods have been neither named nor defined by law. One example could be the GPS devices in company cars used by employees.

Workplace monitoring

Above all, the new rules enumerate the purposes of monitoring. Monitoring the workplace by video surveillance is permitted in the following situations only: 

  • to ensure safety of workers;
  • to protect property;
  • to control production;
  • to keep in secret information that could cause damage to the employer if disclosed.

Email monitoring creates a lot of controversy both among employers and among employees. Importantly, it covers exclusively official business correspondence. This kind of monitoring is allowed only if it is necessary to ensure proper work organisation to fully utilise the working time and make proper use of the tools provided to employees.

Additional monitoring requirements

Employers may use monitoring if they have any of the above needs. As regards the workplace monitoring, there are additional requirements for the surveillance of such places as: bathrooms, changing rooms, dining areas, smoking rooms or trade union rooms – CCTV cameras may be installed there on condition that they do not threaten the dignity and other personal rights of the employees, as well as freedom and independence of trade unions. Moreover, the surveillance of such places should use technology that does not allow recognising the individuals present in those places. As regards email monitoring, it additionally must not violate the privacy of correspondence and other personal rights of employees.

Employers may keep the surveillance recordings for no more than three months of the date of the recording. After that period, the image recording containing personal data (meaning any information that identify or may identify an individual) must be destroyed. Exceptions apply when the recording is evidence in proceedings or the employer learns that it may be used as evidence in proceedings. Then, it can be stored until the proceedings are finally completed.

Workplace monitoring implementation

The new rules govern not only the monitoring practice itself, but also how it should be introduced in the workplace. What matters here is its lawfulness, including appropriate and effective communication to employees about the surveillance method, where and how it will be used and for what purposes. Under the new rules, employers should follow this procedure: 

  • describe the objectives, the scope and the manner of implementation of the monitoring in a collective labour agreement, in the work rules or in a relevant announcement (if the employer is not covered by a collective labour agreement or is not obliged to have work rules);
  • inform the employees about the monitoring in the habitual manner at least 2 weeks before its commencement;
  • mark the monitored rooms and area in a visible and clear way with relevant signs or voice announcements, at least one day before the introduction of the monitoring;
  • on hiring a new employee – inform him/her in writing about the workplace monitoring before commencement of work. 

Employers who already have monitoring in place should bring their procedures in line with the new Labour Code requirements. The new rules do not provide for any transition period for changing the procedures, so the employers should do it without delay. 

Information obligation

The new Labour Code provisions apply to the monitoring only. Still, you should not forget that every employer has new obligations in respect of personal data protection under the GDPR since 25 May. They include, above all, the obligation to inform employees about the rules of personal data processing. When hiring new employees, employers must give them the following information on paper: 

  • address and full name of the data controller and his contact details (e.g. phone number, e-mail); 
  • contact details of the Data Protection Officer (if appointed); 
  • the legal basis for personal data processing (together with a description of legitimate interests pursued by the controller (if any), purpose of the data processing;
  • information about: recipients of personal data, planned transfer of personal data to third countries, data storage period, the right to request access to and rectification or erasure of personal data or restriction of processing or to object to the processing, as well as the right to data portability, the right to revoke consent, and the right to lodge a complaint with a supervisory authority; 
  • whether the personal data must be provided as a statutory or contractual requirement, or a precondition for contract conclusion; 
  • whether the data subject is obliged to provide the personal data and about the consequences of failure to provide such data; 
  • information about profiling. 

The amendments to the Labour Code in respect of the workplace monitoring are very positive. In the past, this issue was not governed at all to the detriment of employees. The most significant novelty is the list of situations and purposes when the monitoring is allowed. In contrast to past practices, employee performance monitoring is most certainly not one of them. 

If you would like to know more on this topic, Rödl & Partner experts in Cracow, Gdansk, Gliwice, Poznan, Warsaw or Wroclaw will be glad to help you.

25.06.2018