The Guimaraes Court of Appeal recently held that it was legal for an employer to obtain data using GPS equipment in order to check the number of kilometres actually travelled by an employee against the data provided by the employee.(1)
The employee was alleged to have engaged in two separate acts:
- there was a discrepancy between the number of kilometres the employee had inserted in his recordal system and the number registered by the GPS system; and
- the GPS equipment was effective due to alterations made by the employee, meaning that on a number of days, it did not communicate the data to the main system (specifically, the employee changed the card and used jamming techniques).
On the basis of the facts described above, the employer dismissed the employee, who challenged the legality of the dismissal. In his challenge the employee argued that his dismissal was based on unlawful conduct that infringed his right to privacy.
The Guimaraes Court of Appeal held that an employer may not engage in remote surveillance of the workplace using technological equipment aimed at checking the professional performance of the employee. However, in the case at hand, the court found that the GPS installed in the vehicle of the medical sales representative was not intended to check on his professional performance, but rather to check the number of kilometres travelled. The concept of professional performance is linked to the duties allocated to the employee and to the way in which the employee performs those duties – that is, where, how and when.
Therefore, if the employer uses the equipment in question to obtain another type of data (ie, to check the number of kilometres actually travelled against the data provided by the employee), it is not evaluating professional performance. In that situation, the data obtained is lawful.
The court found that there was a substantial difference between the kilometres actually travelled and those declared by the employee. It also found that the employee had removed the card inserted in the GPS device from its correct position with the intention of preventing the transmission of the data for which it was installed. Therefore, his behaviour towards his employer was disloyal and violated the duty of preservation and proper use of items related to his work.
Thus, the Guimaraes Court of Appeal held that the employee's behaviour was so serious that it compromised the continuation of the employment relationship. The court held that the employer was not required to maintain the contractual relationship and that the dismissal for just cause was justified and proportionate.
For further information on this topic please contact Filipe Azoia at AAMM Sociedade de Advogados RL by telephone (+351 211 940 538) or email ([email protected]). The AAMM website can be accessed atwww.aamm.pt.
(1) Case 20/14.7T8VRL.G1 (March 3 2016, available at www.dgsi.pt).