Monitoring in the workplace - what the employer is allowed to do
The word "monitoring", like "control", can evoke unpleasant associations. It is understandable as the monitoring system constitutes a kind of restriction of the freedom of people staying in the place where it operates. These people, being aware that their behavior is being watched, may feel discomfort. On the other hand, in the realities of the workplace there are cases in which the observation of employees will be justified. The Labor Code sets acceptable limits for the application of monitoring by the employer
What is monitoring?
Pursuant to Art. 222 § 1 of the Labor Code, monitoring should be understood as special supervision over the premises of the workplace or the area around the workplace in the form of technical measures enabling image recording.
The codex approach to monitoring does not include audio recording. In the "Guidelines of the President of the Personal Data Protection Office on video monitoring" (p. 26, https://uodo.gov.pl) it was stated that the provisions on monitoring do not, in principle, allow for audio recording. Such powers are granted only to security and special services on the basis of the laws regulating their activities. The use of audio recording may be considered a redundant form of data processing and entail administrative, civil and even criminal liability.
Monitoring involves the processing of personal data, including, inter alia, on saving, viewing and sharing the recordings made. Therefore, monitoring applies to all legal requirements for the protection of personal data, resulting from the GDPR, the Act of May 10, 2018 on the protection of personal data and specific provisions.
When can monitoring be introduced?
Pursuant to the mentioned Art. 222 § 1 of the Labor Code, the introduction of monitoring by the employer may take place when it is necessary to:
- ensuring the safety of employees,
- property protection,
- production control,
- or to keep confidential information, the disclosure of which could harm the employer.
In a plant producing household appliances, cases of theft have been reported - the components being removed by employees from the production hall. After making the inventory, it was found that these were not isolated cases, which resulted in measurable damages for the employer. Therefore, the employer decided to introduce video monitoring. In the circumstances described, this decision can be considered justified by the need to protect property.
Where is monitoring prohibited?
Although the employer recognizes that there are grounds for introducing monitoring, there are places where it cannot be used. The Labor Code, in art. 222 § 11, lists here in the first place the rooms made available to the company trade union organization. The ban on monitoring these rooms is absolute and is related to the principle of freedom and independence of trade unions.
The second exclusion from monitoring results from Art. 222 § 2 of the Code, which lists sanitary rooms, cloakrooms, canteens and smoking rooms. However, the aforementioned provision provides, by way of exception, for the possibility of covering these rooms with monitoring, provided that:
- its use is necessary to achieve the purpose specified in art. 222 § 1 of the Code (see above),
- and it will not violate the dignity and other personal rights of the employee, in particular through the use of techniques that make it impossible to recognize people staying in these rooms; monitoring of sanitary facilities requires the prior consent of the company trade union organization, and if the employer does not have a trade union organization, the prior consent of the employee representatives elected under the procedure adopted by the employer.
How to implement monitoring?
Actions to be performed in connection with the introduction of monitoring are described in Art. 222 § 6 - § 9 of the Labor Code. Pursuant to the regulations contained therein, the objectives, scope and method of application of monitoring are established in a collective labor agreement or in the work regulations, or in a notice, if the employer is not covered by a collective labor agreement or is not obliged to establish work regulations. The employer must inform employees about the introduction of monitoring in the manner adopted by him no later than 2 weeks before its launch.
The employer decided to implement monitoring on December 1. On November 14, a message about the decision was sent to the e-mail boxes of all employees. The employer complied with the statutory requirement to inform employees.
In addition, information on the goals, scope and method of monitoring set by the employer should be provided in writing to each newly hired employee, prior to allowing him to work.
The rooms and the area to be monitored should be marked by the employer in a visible and legible manner with appropriate signs or sound announcements, not later than one day before the monitoring is started.
The image recordings may be processed by the employer only for the purposes for which they were collected and stored for a period not exceeding 3 months from the date of their recording. In the event that the recordings constitute evidence in legal proceedings or the employer has learned that they may constitute evidence in the proceedings, the 3-month period shall be extended until the final conclusion of the proceedings. After the expiry of the storage period, the recordings should be destroyed, unless separate provisions provide otherwise (Article 222 § 3 - § 5 of the Labor Code).
The employer, pursuant to art. art. 52 § 1 point 1 of the Labor Code, terminated the employment contract with an employee due to a serious breach by the employee of his basic obligations, which consisted in the theft of elements of the employer's property (prefabricated elements used in production). The surveillance recordings are the evidence in this case. The employee appealed to the court demanding reinstatement. In these circumstances, the employer has the right to store the aforementioned recordings constituting evidence in the case until the court judgment settling the dispute with the employee becomes final, and if other proceedings are also pending, e.g. regarding the employer demanding compensation for damages, in which the recordings also constitute evidence, the recordings these may be stored until all these proceedings are legally resolved. Start a free 30-day trial period with no strings attached!
In art. 223 of the Labor Code, a special type of monitoring is mentioned separately, consisting in the control of the employee's official e-mail. It can be introduced if it is necessary to ensure work organization enabling full use of working time and proper use of the work tools provided to the employee. Monitoring may not, however, violate the confidentiality of correspondence and other personal rights of the employee.
With regard to correspondence conducted by the employee within the corporate e-mail box, it is presumed that it is not private in nature, but is conducted on behalf of the employer. On the other hand, a breach of the confidentiality of correspondence could occur when the work e-mail box is used - with the consent of the employer - also for the private purposes of the employee. Then the monitoring of e-mail would be conditional on the employee's prior waiver of the right to confidentiality of correspondence with regard to this mailbox.
Other types of monitoring
Pursuant to Art. 223 § 4 of the Labor Code, the provisions on e-mail monitoring shall apply mutatis mutandis to other forms of monitoring, if their application is necessary to achieve the goals for which the introduction of e-mail monitoring is allowed. For example, we can mention here the control of the employee's use of the Internet, GPS log-ins in a company car, recording working time using automated systems.
The introduction of monitoring in the workplace serves to eliminate, or at least reduce, certain risks described in the provisions of the Labor Code. When using this tool, employers must, however, remember to comply with the requirements regarding the method of introducing monitoring, informing about its use and protection of personal data, including the image of employees and other persons in connection with the use of video monitoring.