Constricted privacy in Slovak labour law - Employer has the right to monitor employee’s communication

21.03.2016

The timely fulfilment of given tasks is one of his most important obligations of each employee. Misuse of means entrusted to the employee leads in many cases to unwanted breach of this obligation. Therefore, it is in the best interest of each employer to monitor the use of entrusted tools.

The Slovak labour law limits the monitoring of employees. An employer may monitor his employees only when serious reasons relating to the specific character of the employer are given and the employee was notified about this in advance.

Recently, the European Court of Human Rights (ECHR) decided that even monitoring of employee’s personal messages – sent via means of employer (e.g. PC) - may be considered as a valid restriction of his privacy in accordance with the law. In this particular case ECHR has dealt with the claim of a Romanian engineer, which was employed as salesperson and which sued his employer for allegedly invalid termination of his employment contract.  The engineer claimed that decision to terminate the employment contract was based on a breach of his right to privacy. After ECHR examined all the facts and provided evidence, it came to the conclusion that the employee’s right to privacy wasn’t violated. This decision provides for certain guidelines as to the restriction of the employee’s right to privacy and allows the employer to pursue his interests; however a proper balance between the employee’s rights for privacy and employer’s interests must be observed in any case.

According to the decision of ECHR following factors are of importance:

Essential requirements

  1. Internet use policy. Implementation of proper internet use policy, including specific rules on the use of email, instant messaging, social networks, blogging, web surfing and other company technology is the first step one should make.
  2. Transparency. The abovementioned policy needs to be transparent. As a regulatory framework it should therefore contain rules how the internet may be used, information on the scope, purpose and time of monitoring, information how the monitoring is conducted (used technical means of monitoring), information on how gathered data are secured, used and destroyed and who has access to it. Furthermore the policy should contain the rights and obligations of employees.
  3. Consequences. In order to comply with the principle of proportionality, the policy or the respective employment contract should contain provisions about consequences of breach. It is advised to clearly mention that breach can lead to the termination of employment.
  4. Proportional enforcement. The consequence should be always proportional to the breach. The intensity of the breach, its continuity and caused damage should always be taken into account before appropriate disciplinary measures are taken (written reprimand, demotion, termination of employment, etc.).
  5. Consistent implementation policy. Expresses equal treatment and avoids any type of discrimination.
  6. Employee’s awareness. Last, but not least – the eventual culprit needs to know for what and how he can be punished. It is advised that each employee signs the policy and confirms that he has read the policy and agrees on the conditions under which he is permitted to use the regulated technology.

Current legal situation in Slovakia

The similar case has not been tested after ECHR decision in front of Slovak Courts. Therefore, it will be very interesting to see how they will cope with this new development.