It is with increasing frequency that various employee monitoring systems are put in place in working establishments by employers, expecting them to improve work performance or prevent leaks of business secrets. It is a common practice to monitor the websites visited by employees, to check the contents of company e-mail box allocated to staff members, or to oversee the use of company hardware. Unfortunately Polish legislation can hardly keep abreast of the technical progress and does not regulate expressly the issue of staff monitoring. However, since the labour law obligates the employee to do his or her work conscientiously and diligently and to follow the superior’s instructions, as well as providing that during time of work the employee remains at the employer’s disposal, it must be concluded that the employer is entitled to monitor its employees’ activity. Still, the employer’s actions aimed at collecting information on employees by subjecting them to observation, either direct or conducted using electronic means, must not infringe on personal dignity or other personal interests of the employee or breach his or her right to privacy.
Given the absence of precise legal regulations, the issues of staff monitoring have been addressed a number of times by courts. The case-law of the European Court of Human Rights provides that in order to avoid the claim of infringement of privacy and of the employee’s personal interests, the employer is required to inform each staff member of the scope and methods of monitoring applied and to indicate the purpose of such monitoring (see ECHR judgement, complaint 62617/00). In its justification, the ECHR stressed that the employer may not encroach on an area that the employee believes to be restricted as his or her private one.
In the light of the above, the key issue is for the employer to clearly specify the staff monitoring policy in a way that leaves no doubt as to the scope of its application. There are no special requirements governing the procedure under which the staff monitoring policy is to be introduced. Consequently, it can be incorporated into the collective bargaining agreement or work regulations, it may be attached as a schedule to the employment contract or included in another internal company document. The key issue is for the employer to be given an opportunity to review the policy before it is implemented. A written statement obtained from the employee confirming that he or she has reviewed the monitoring policy as effective at the company will provide good security in the event of a potential dispute.
It also needs bearing in mind that staff monitoring should be used to protect genuine interests of the employer. That is why the method(s) and scope of monitoring should correspond with the objective that the employer is seeking to achieve by applying it. For instance monitoring can be put in place to protect the employer’s business and commercial secrets, safeguard the property of employees at the place of work, or to assure quality and observance of work procedures in effect at the employing establishment. Under no circumstances can monitoring become a hidden mobbing-type of activity directed against individual employees or groups of employees.
Should the employer introduce staff monitoring in breach of the above requirements, employees would be entitled to raise both pecuniary and non-pecuniary claims under the provisions of the Civil Code. Firstly, the employee would be able to claim pecuniary compensation for the wrong suffered or request that the court award an adequate amount of money in support of a social cause elected by him or her (Article 448 CC) and redress of a pecuniary loss (Article 415 CC). Further, the employee is also entitled to terminate the employment contract with immediate effect on the grounds of the employer’s grave violation of basic obligations towards the employee and claim related compensation.
Summing up, firstly, it must be stressed that when putting a monitoring system in place the employer is required to demonstrate a reasonable objective that it is seeking to achieve thereby. Secondly, the measures undertaken by the employer need to correspond with the objective. Thirdly, the employer is required to communicate openly to its employees the application, method(s), and scope of the monitoring system employed. In the light of the above, in order to avoid adverse ramifications it is particularly significant to adopt clear and accurate internal procedures regulating the staff monitoring issues.