Questions from the public on workplace surveillance

Our telephone helpdesk has received numerous phone calls on the subject of workplace surveillance. Proof, if any was needed, that neither employers nor employees really know what is actually permitted.

Numerous employers and employees contacted our telephone helpdesk during the year under review in order to find out whether workplace surveillance was permitted. Video surveillance, movement tracking by means of company-issued smartphones and other devices, and the monitoring of emails and surf history, are clearly the hot issues of the day.

We noted that employers were primarily interested in ascertaining how to ensure that their activities were in line with data protection rules. As for the employees, we realised that it was not workplace surveillance per se that worried them; most of them are aware of the fact that they are being monitored and they have no issue with that. The questions that they ask clearly indicate that they want to know what employers can and cannot do. In many cases, those who contact us are persons who have either received a warning for their behaviour from their employers, or are currently the subject of an investigation, or have been dismissed.

The real issue here, and the solution, lie in maintaining transparency and clear communication. Employers must provide their employees with precise information about how the surveillance is being carried out, what is being evaluated, and what its purpose is. Regulations governing use and supervision should make it explicitly clear to employees that data concerning them will be processed. Employees must also be told clearly what Email and Internet may and may not be used for.

Clearly, this is another area where the question of the proportionality of the planned supervisory measures must be seen in relation to the objective that employers are seeking to achieve. Here we must say that the technical means available to them do sometimes lead to the adoption of disproportionate supervisory measures. That is why we have made it crystal clear that evaluating data generated by the use of information and communication instruments (telephone, Email, Internet, fax) by means of personal log files is only admissible if there are serious grounds for suspecting a case of misuse. Furthermore, it must be shown why other measures that encroach less on an employee's privacy rights and which could also show whether the grounds are legitimate have not been used. One final point on this subject: surveillance and control systems which are designed to observe employees' behaviour are illegal (Ordinance 3 of the Employment Act; in german).