In a recent decision, NAIH, Hungary’s Authority for Data Protection and Freedom of Information assessed the data protection compliance of a proposed workplace surveillance programme. This is the first major case where NAIH applied its Recommendation dated 30 January 2013 on the General Requirements of Electronic Surveillance Systems at the Workplace. Now NAIH provided further guidance on the use of cameras at the workplace, e.g. the permitted use of cameras, data minimisation requirements, privacy notices and data retention.
A Hungarian municipality claimed that it had encountered multiple problems such as employees not fully using working hours, not adhering to the timeframe of breaks or issuing threats issued towards supervisors. As a result, it proposed introducing an employee surveillance program – by using handheld cameras and cameras built into glasses – to record the progress and the completion of its public work projects, to help with the settlement of payment claims and to document potential employment-related disputes. Another purpose of the proposed measures was to monitor how the employees work and manage their time, for disciplinary reasons. The municipality claimed that the cameras would only be used when the employees’ supervisors noticed some irregularity.
The Labour Code enables workplace monitoring, for employment-related purposes, provided that the methods and devices used do not breach human dignity, employees’ private life is not monitored, and employees received preliminary notice of the significant data processing terms of the monitoring.
NAIH’s main findings
NAIH’s guidance to the municipality focused on how to ensure data protection compliance and accountability when introducing workplace surveillance cameras.
- Employee monitoring for the purpose of increasing work intensity and work quality would be unlawful, according to NAIH. Surveillance systems can primarily be used for the purposes of protecting health and safety, personal freedom, business secrets and assets. Surveillance may also cover hazardous establishments and worksites (e.g. assembly labs containing heavy machinery, and certain manufacturing processes). In justified cases, employees may also monitor locations necessary for the protection of tools, raw materials and other assets with significant value (primarily storage rooms and the corridors leading to them). Cameras cannot monitor the activities of a single employee, influence employees’ behaviour at work, or record work breaks.
- Data minimisation. Employers should record an irregularity only if it cannot be documented or proved in another manner and with a device less intrusive upon privacy. If a supervisor notices any irregularity, he/she should issue a verbal warning, and subsequently take minutes of the case. If the irregularity cannot be remedied by the above, and evidence cannot be documented in any other way, then the supervisor is entitled to record the situation with a camera. The supervisor should endeavour to document the case by taking photographs only. The supervisor may only record video footage if the irregularity cannot be recorded otherwise and the purpose of the data processing cannot be achieved by other means. Recording footage to document completed works should not necessarily have to include footage of the employees themselves.
- Recording crimes. In the Hungarian judicial system, photo and video footage recorded of suspicious behaviour which may constitute a crime is admissible as evidence in criminal proceedings. Nevertheless, NAIH notes that recording can only take place if the commission of the crime is a real possibility and evidence cannot be obtained by other means. The supervisor must endeavour to record the footage in such a way that it primarily records the crime and the relevant people.
- Privacy notice. The employer must ensure that the employees are sufficiently well informed in relation to the electronic surveillance system. The employer must prove that the employees actually received the privacy notice. The privacy notice shall be independent from the employment agreement. The consent of the employees is not necessary for the operation of the system – therefore, privacy notices shall contain reference to the Labour Code and the legitimate interests pertaining to the surveillance. As the surveillance system does not constantly record footage, the supervisor has to verbally call to the employee’s attention that he/she will record footage of the irregularity.
- Data retention. If the employer applies employment sanctions on the basis of the recording then the footage may be stored for 3 years (employment-related limitation period). The employer must delete the footage once it has been handed over to an authority or court as evidence.
- Reviewing the footage. The employer must ensure that employees can, at any time, view and comment on the recording in the presence of a representative of the employer.
Act CXII of 2011 on the Right of Self-Determination in Respect of Information and the Freedom of Information (“Data Protection Act”)
Act I of 2012 on the Labour Code
NAIH’s opinion in the relevant case: NAIH/2015/3355/5/H (only in Hungarian)