In
a very recent judgment the Curiae of Hungary published its conclusions
regarding the illegal monitoring of employees and data collecting by the
employer. In the high profile case an executive of a telecom service provider
filed their immediate termination against the employer and requested a large
amount of “non-material” damages.
The
case is considered to be one of the highest profile data protection and
employment law cases and could be a precedent decision in any case regarding
the illegal monitoring of employees.
Summary
of the case
The plaintiff was a sales manager of a telecom company
from 2002. He was entitled for using lap top and cell phones both of them was
monitored and tracked by the employer via geographic information system from
2005. When he realized the fact of geographical monitoring of his devices
immediately wrote an e-mail to the employer requesting that it most switch of
the GIS. He did not get reply from the employer and therefore he filed his
immediate termination and requested a high amount of termination payment
together with so called non-material damages.
Applicable
Hungarian laws
Hungary has changed its labour code as from 1 January
2012, the case was under the old legislation. However, both under the old and
the new legislation there is a legal dispute between courts and authorities
whether the employer may “secretly” monitor its employees.
The Fundamental Law of Hungary contains the right to
protection of privacy by each individuals. Moreover Hungary has a separate
legislation of Privacy Protection, namely Act No. CXII of 2011 on the self
determination of information and freedom of information.
In a public opinion dated 2006, the date protection
commissioner clearly stated that the GIS can be activated only in working hours
and solely with the consent of the employees. Further the third data protection
commissioner published a more detailed opinion regarding GIS applications and
confirmed the following:
(i)
consent is required from the employees;
(ii)
proper information shall be given on the processing;
(iii)
the device can be activated only in working time and
relating to work;
(iv)
the employees must be informed about their basic rights
(such as deletion and cancelation);
(v)
a test of proportionality must be applied by the
employer before the installation of GIS.
Court
procedures
In the first instance procedure the employer admitted
the use of GIS, but argued that it was only for testing and in 2005. The first
instance court held that although the fact of using GIS by the employer may
serve as a valid reason for termination. In the present case however, the
employee terminated the employment relationship in 2008, which may not serve as
a valid basis for an alleged infringement committed by the employer in 2005.
The employee appealed against the decision. The
Metropolitan Court of Appeal changed the judgment and found that the employer
had violated the Hungarian laws when it installed a GIS without the consent of
the employee. The employer violated the human dignity of the employee. The
second instance court pointed out that the employee had used the mobile device
in his private life, he had therefore the right for the protection of his
privacy.
The second instance court applied the reasonability
test: it examined whether the employer should “reasonably” monitor the
employee. It noted that the job description of the employee could be a reason
for the application of GIS, however, the installation was without the consent
of the employee and it was activated after the work hours. The court explicitly
referred to the statement of the data protection commissioner.
The court also took into account that the employer
allowed the private use of the device and as a conclusion it found that the
monitoring was unlawful. The employer as defendant turned to the Curiae.
The Curiae came to the conclusion that the consent of
the employee was required for the activation of the GIS, moreover the employer
did not provide proper and direct information to the employees. On contrary,
the employer committed a “secret” monitoring and omitted the fact of applying a
GIS on the device used by the employee.
The Curiae upheld the decision of the second instance
court and confirmed that the collection of geographical data without the
consent of the employee is a breach of data protection laws and is an illegal
data processing. The termination by the employee is therefore valid.
Learning
of the case
Although the case refers to the old Labour Code it
should be considered as a milestone decision.
Most of the other judgments require that the employee
“informs” the employee about the monitoring but the consent is not required.
This conclusion is supported by the current Data Protection Authority (NAIH).
The NAIH published a general statement on monitoring of employees. In its
general statement the data protection authority is of the following conclusion:
(i)
the employers have the right to monitor the work of
employees (accountability);
(ii)
no consent can be valid from the employees since it
cannot be assumed that an employee gives “voluntary” consent to the employer;
(iii)
the monitoring based on information can be valid
provided that it complies with the purpose limitation principles and does not
violate the human dignity of the employees.
The NAIH refers to section 6 of the Privacy Act which
provides possibility for controlling data without consent if the data
controller has legitimate interest for the controlling.
In light of the present judgment of the Curiae, the
conclusions of the data protection authority shall be revised and it is very
likely that the NAIH will revert back to the conclusion of the data protection
authority published in 2009.
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