Supervision rights of the employer in Hungary
To what extent is "spying on" employees by electronic means permissible?
It has always gone without saying that an employer may supervise its employees within the scope of their employment relationship. However, such supervision and monitoring cannot be without limits. The rights of the employer are limited by employees’ right to private life and human dignity. But how do things look in practice?
Employers’ rights vs. employees’ rights
By law, an employer is authorized to check its employees’ behaviour pertaining to their employment but may never supervise its employees’ performance or work related behaviour in a way that would be detrimental to the employees’ rights to private life and human dignity. The employer may not examine the private life of its employees. Employees’ personality rights may only be restricted if this is deemed strictly necessary for reasons directly related to the intended purpose of the employment relationship and is reasonable for achieving such purpose.
The general framework for monitoring of employees is defined by the Hungarian Labour Code, the Data Protection Act and the Act on Security Services and the Activities of Private Investigators in addition to direct applicability of certain parts of the EU Data Protection Directive. These pieces of legislation only establish the basic principles for the supervision, however, and the actual content of such monitoring has to be specifically defined by the employers in guidelines or employment agreements.
Supervising authorities and applicable sanctions
The National Authority for Data Protection and Freedom of Information (DPA) and the National Labour Authorities supervise employers’ practices to ensure compliance with all regulations concerning the electronic monitoring of employees. The authorities may impose penalties, including fines which can range from HUF 100,000 to HUF 10 million in the case of a fine imposed by the DPA; and labour authorities may impose fines between HUF 30,000 and HUF 10 million. In addition, employers may be liable for prosecution under civil law (sanctions imposed regardless of culpability, restitution or damages) or even under criminal law in the capacity as legal entities.
The principles for legal supervision are the following: The employer may only monitor its employees within the scope of the employment relationship and has to apply the necessity and proportionality test (i.e. employees’ personal rights may only be limited by the employer as much as is necessary for the employer to achieve its objectives and only to the extent required for this purpose). The employees must be notified prior to the monitoring and, furthermore, data collected by the employer in the course of such monitoring must be treated in line with the provisions of the Data Protection Act.
An example of electronic supervision
Use of cameras
DPA’s most recent opinion is reflected in its protocol published on the basic principles of electronic supervision used in the workplace (Protocol). Under the Protocol, an employer may specifically use camera systems to pursue the following objectives: protecting human life, personal integrity and personal freedom, guarding dangerous materials, protecting business, salary, banking and security secrets, safeguarding places such as assembly facilities with expensive equipment, or guarding raw materials or other valuables in warehouses and adjacent corridors.
The Protocol states that employers may not install cameras to observe only one employee unless the purpose of this is to influence the behaviour of the relevant employees (e.g., to enhance the speed of their work or stop employees talking whilst working). Nor may any cameras be installed in premises where this would be against the dignity of the employees (e.g. in bath rooms, changing rooms, medical rooms or places where they spend their breaks). However, cameras may indeed be installed and operated in all places at all times when legally no one is required to be at present (e.g. after working hours or on weekends). In addition, signs indicating the use of CCTV have to be put up in places where cameras are in use.
Employers may keep recordings for 3 business days and this period may be extended on justified grounds for 30 or a maximum of 60 days.
The use of cameras has to be reported to DPA and the employer must be registered in the data protection registry.
In order for an employer to avoid any breach of the provisions detailed above as well as any resultant penalties, employees must be informed of the electronic surveillance system. Typically, by adopting a policy that sets out (i) the purpose of the monitoring, (ii) the persons processing the records and (iii) employees’ rights with regard to the handling and processing of surveillance information, employers are able to strike a balance for both sides that enables them to have their cake and eat it.
Any questions? Please contact:
Dr Bíborka JójártPractice Group: Employment & Pensions