It is common for employers nowadays to monitor publicly accessible premises with security cameras, for example in the retail sector. This is usually to protect employees and the employer's assets, including protecting the employer from criminal activity, sometimes even from its own employees. Video records can often reveal misconduct which can, in some cases, be serious enough to amount to gross misconduct and may result in immediate termination of employment. The most common types of misconduct revealed by monitoring systems in the retail sector are theft, false return of goods (i.e. cancellation of issued cash register receipts) or acceptance of payment without registering these through the case register (and subsequent retention of the cash by the employee).
If the employer chooses to terminate the employment of the employee, they will need to be able to show unambiguous proof of such behaviour. The employee has the right to challenge the immediate termination of the employment before a court and it is for the employer to prove that they had good reason for the dismissal. If the employer cannot demonstrate that the employee breached the employer's disciplinary code, the court will declare the termination of the employment null and void. The employment relationship continues to exist, but the employer must compensate the employee for the salary lost during the period from the invalid termination of the employment and, in addition, compensate them for their legal costs.
The video record is clearly the most valuable evidence in such cases. In fact, it is often the only evidence that can show the time, place and illustrate all the details of the employee's conduct.
In the Slovak Republic, however, the employer's right to retain the video record is rather limited. In general, such a record must be deleted within 15 days of its creation. This obligation arises from new legislation relating to the protection of personal data (the "Act") and has since been expressly confirmed in guidelines issued by the Office for the Protection of Personal Data of the Slovak Republic. The Act implements the relevant European Directive but the level of protection afforded by the Slovak legislation exceeds the standards provided for by the European Directive. While such implementation is generally permissible, it is questionable whether the current regulation interferes with other rights guaranteed by the constitution, in particular the protection of assets.
A situation might arise in practice where the employer no longer possesses relevant evidence concerning the conduct of an employee at the time of the termination of employment, as it is often unrealistic to disclose the misconduct and investigate such misconduct, assess the damages and prepare the documents necessary for the immediate termination of employment of the employee within the statutory time period.
The only exception permitted by the Act allows the employer to store the record for a time period longer than 15 days in order to provide it to the public authorities for the purposes of criminal or administrative proceedings. This means that, in order for the employer to be able to retain the video record as evidence of the breach of the employer's disciplinary code, the employer must file a criminal report or report the act as an administrative offence. This, however, prevents the parties from settling the matter by way of a mutual agreement without instituting official proceedings. Not every employer is interested in prosecution of the employee. In addition, official proceedings require the extensive cooperation of the employer and participation in the investigation. There is a risk that this may, in some circumstances, harm the employer's goodwill.
The prohibition on storing video records after the 15 day statutory period, except where the record was handed over for the purposes of criminal investigation, forces the employer to discard potentially crucial evidence for use in employment court cases or, alternatively, to disclose activities that may be detrimental to its business.