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.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal
developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of
action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser
should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.