Is monitoring of remote work of employees legal?
The employee should perform his duties reliably and in accordance with the instructions of the supervisor. Controlling the activities of the employee is possible in a traditional workplace - but what does it look like if the duties are performed remotely? Is monitoring of remote work of employees by superiors legal?
Remote work has been available in the Polish legal system for many years. Due to the restrictions related to the coronavirus epidemic, this model of performing work duties has become more and more popular day by day.
In order to counteract COVID-19, the employer may instruct the employee to perform, for a specified period of time, the work specified in the employment contract outside the place of its permanent performance (remote work).
(Article 3 (1) of the Act on special solutions related to the prevention, prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them)
Employers are distrustful of the possibility of remote work by their subordinates. They are afraid that their duties will not be performed correctly and on time. Is this sufficient justification for monitoring remote work?
Monitoring remote work - the right of the superior
Every employer has the full right to monitor his employee if he performs his duties outside the company's premises. It results directly from the content of Art. 6714 of the Labor Code, according to which the employer has the right to control the performance of work by the teleworker at the place of work (teleworking should be understood here as remote work).
If the work is performed in the teleworker's home, the employer has the right to inspect:
- work performance;
- in order to inventory, maintain, service or repair the entrusted equipment, as well as its installation;
- in the field of occupational health and safety
- with the prior consent of the teleworker expressed in writing or by means of electronic communication or similar means of individual remote communication.
What should remote work monitoring look like?
The employer's right to monitor remote work does not mean that such activities can be carried out in any form and at any time. It should be remembered that every employee has the right to privacy, which is especially important when he performs his duties at home.
The current regulations require the employer to adapt the method of carrying out inspections to the place of performance and the nature of the work. Therefore, the performance of control activities should not violate the privacy of the teleworker and his family, or impede the use of home rooms in a manner consistent with their intended use.
For example - the employer cannot require a remote employee to show him the condition of all his rooms or household appliances. The control must be closely related to the duties performed.
In practice, monitoring of remote work should be based on specially designed computer programs that can easily and easily send the necessary information to the supervisor. The vast majority of work performed remotely is based on the use of a computer, smartphone or tablet - so installing the appropriate software should not be a problem. It should be remembered that the costs in this area should be borne by the employer, not the employee, and the first inspection is carried out at the request of the teleworker before he starts working.
Monitoring remote work and GDPR
The protection of employees' personal data and files available on their computers raises serious doubts. While performing remote work on business equipment should not be a major problem in this respect, it may be a problem in the case of private computers.
Monitoring work performed on private equipment can theoretically lead to a breach of employee privacy. Pursuant to the current regulations, the employer has the right to record the work of his subordinate and check his official e-mail. Violation of the above rules - even to a small extent - may constitute a breach of the provisions on the protection of personal data and the already known GDPR.
In order to avoid liability for violating the privacy of an employee when performing remote work, clear rules for reporting the results of work and for the conduct of inspections by the employer should be established. A perfect solution is the introduction of appropriate regulations that will precisely define the scope of rights and obligations of the two parties to the employment relationship. Each employee working remotely should be informed about the rules of monitoring his activities.
If the employer breaches the employee's private data during the inspection - for example, obtains access to his personal photos, videos or music files, the employee has the full right to demand that such action be stopped. The aggrieved party is also entitled to the payment of appropriate compensation.
Art. 448 of the Civil Code
In the event of a violation of the personal interest, the court may award to the person whose personal interest has been infringed an appropriate amount as pecuniary compensation for the harm suffered or, upon his request, order an appropriate amount of money for the social purpose indicated by him, regardless of other measures needed to remove the effects of the violation.
As rightly noted by the Court of Appeal in Warsaw in its judgment of 13 December 2019, I ACa 704/18, the provision of Art. 448 of the Civil Code is independent and is entitled to apply other measures necessary to remove the effects of infringement of personal rights, unless other measures exhaust the rights of the infringed person. The award of compensation is therefore always optional and it is up to the court's assessment based on the analysis of the circumstances of a specific case to grant the injured party protection in this form, even if the condition of unlawful infringement of the personal interest is met. Start a free 30-day trial period with no strings attached!
Is the employer obliged to monitor remote work?
The decision to monitor remote work is entirely up to the employer. This is a right that you do not need to exercise. On the other hand, work in such a special form requires periodic checking of the effects and efficiency of the employee.
Monitoring remote work does not have to be frequent - for example, it can be carried out once a week or even once a month. Much in this matter depends on the type of job, the size of the duties performed or the contact with the company's clients.
Controlling working time can also be replaced by billing for completed tasks. This is a good solution, especially in the case of civil law contracts, to which the provisions of the Labor Code cannot be applied - in this respect, the regulation on monitoring remote work does not apply.
Accounting for each hour of work is usually unfavorable for each party. The employee becomes frustrated that he is being controlled and cannot focus on the tasks performed, and the employer wastes a large amount of time checking his subordinate. If we want to monitor an employee, do it in moderation and with sensitivity.
Monitoring remote work - summary
Monitoring remote work is legal, although it should be clearly stated that only in relation to the duties performed under the employment contract. The employer may exercise this right, although he is under no obligation to do so.
It is worth remembering that monitoring of remote work should not apply to civil law contracts - here the provisions of the Labor Code do not apply. Contracts for mandate or for specific work should be settled in the task system, not in the course of performed activities. This solution can also be adopted in the case of remote work.
Monitoring remote work must respect the privacy of each employee and with full protection of his personal data (regardless of whether the duties are performed on private or company equipment). A breach in this respect gives the employee the opportunity to demand appropriate compensation from the supervisor.