The employer’s right to monitor - Adrienn Lukács Employees’ Right to Privacy and Right to Data

Anders J. Persson and Sven Ove Hansson emphasized the significance and specificity of the employment relationship: according to them it is the rights and obligations ensuing from the employment contract which makes workplace privacy/monitoring issues such a specific subject, compared to other kinds of relations.^{555, 556} They argue that an intrusion into the privacy of employees must be justified by what the parties can require from each

550 Gyulavári 2013. pp. 248–249.

551 Hendrickx 2002. pp. 23–24.

552 WP29: Working document on the surveillance of electronic communications in the workplace, 2002. p. 4.

553 Plasschaert 2017. p. 106.

554 Hajdú 2005. p. 20.

555 Persson – Hansson 2003. p. 63.

556 The ILO highlighted the significance of processing in the employment context from a different aspect stating that “[i]n hardly any other case are so many personal data processed over such a long period of time as in connection with the employment relationship.” Source: Protection of workers’ personal data. An ILO code of practice. International Labour Office, Geneva, 1997. p. 8. (Commentary)

other based on the rights and obligations set forth in the employment contract.⁵⁵⁷ This supposes that the privacy issues are specific regarding the employment relationship (other kinds of legal relations such as self-employment, entrepreneurship or mandates give rise to different kinds of privacy challenges) and that the employer’s right to monitor can be derived from the obligations and rights imposed on the parties.

Given the importance of the employment relationship, it must be examined what employment is and what its main characteristics are, making it special in the field of workplace privacy and data protection. It follows from the subordination between the employer and employee that the employer has power to exercise authority over employees.⁵⁵⁸ Frank Hendrickx identified monitoring as an element of authority and subordination, which is essential in the employment relationship.⁵⁵⁹ The Section will first explore the main characteristics of the employment relationship, and the rights and obligations ensuing from it, which also give rise to the employer’s right to monitor.

These characteristics and the main observations drawn from them are common to industrialized societies, therefore the right to monitor will first be approached from (§1) a more general angle, based on international standards and rules. The exact appearance of these general principles and rights can differ from state to state, therefore then (§2) it will be addressed how the right to monitor materializes in the French and in the Hungarian legal order.

§1. Rights and obligations arising from the employment relationship

The ILO addressed the question of the employment relationship – which is a concept common in every legal system⁵⁶⁰ – on several occasions. In a document entitled “The employment relationship. Report V(1)”, the ILO demonstrated through several examples that when it comes to the employment relationship, the most commonly used factors to describe this relationship (in order to delimitate it from other concepts) are dependency, subordination, authority, direction, supervision, control.⁵⁶¹

A report and questionnaire were sent out to the Member States’ governments containing different questions regarding the possible content of an ILO document. Question eleven [Qu. 11 (1)–(3)] was related to the factors and indicators determining the existence of an employment relationship, and to the question what indicators should be used in order to achieve this [Qu. 11 (3)]. Dependency, subordination, supervision, control of work, direction, authority were often listed by governments.⁵⁶² Finally, the adopted Recommendation included amongst the possible indicators that the work “[...] is carried out according to the instructions and under the control of another party […]”⁵⁶³ The annotated guide to the Recommendation, while referring to Paragraph 12 of the Recommendation, identifies control and dependence (or subordination) amongst the most important criteria.⁵⁶⁴

557 Persson – Hansson 2003. p. 64.

558 Hendrickx 2002a. p. 49.

559 Hendrickx 2001. p. 248.

560 ILO 2006. p. 6.

561 ILO 2006. p. 21.

562 ILO 2006a. pp. 155–160.

563 Recommendation concerning the employment relationship. (No. 198.) 95th ILC session, Geneva, 2006.

par. 13 a

564 ILO 2007. p. 33.

Control is considered to be an important indicator of subordination.⁵⁶⁵ In every industrial country, the employment relationship is centred on subordination and is conceived as a relation where the employer can command and the employee shall obey.⁵⁶⁶ The fundamental concepts laid down in these documents are relevant for European countries as well. A report prepared by members of the European Labour Law Network (hereinafter referred to as:

ELLN) addressing the question of the characteristics of the employment relationship in the EU argued that “[i]n all countries, the main criterion for establishing an employment relationship or an employment contract is that one person is subordinated to or dependent on another person.”⁵⁶⁷ It basically refers to the organisational subordination,⁵⁶⁸ meaning that “the employee is subjected to supervisory power exercised by the employer.”⁵⁶⁹ The CJEU also confirmed that “[t]he essential characteristic of the employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration”.⁵⁷⁰

This could be described by four characteristics. First, organisational subordination, which encompasses the employer’s power to give instructions regarding the work: both personal and functional instructions. Second, the control of work and the supervision of employees are also considered to be crucial in most Member States. Third, the integration of the employee into the organisation is often a relevant indicator. Finally, amongst the

‘other’ indicators, the provision of tools and materials by the employer and the fact that work is carried out within specific hours or at an agreed time can also be an indicator of organizational dependence.⁵⁷¹ Another, more recent study in 2013 affirmed the importance of dependency and/or subordination when determining the existence of an employment relationship, which often involves control and the power to give instructions to employees, and provided several examples from EU Member States’ legal systems.⁵⁷²

A study⁵⁷³ conducted back in 2001 under the supervision of Frank Hendrickx analysed the labour law regulations of EU Member States with regard to employee data protection and monitoring. This study also stated that the authority of the employer and the (legal) subordination of the employee are common factors in all Member States when it comes to the employment relationship.⁵⁷⁴ It refers to the general labour law principles and acknowledges that “these principles imply that employers have a contractually based right to control contract fulfilment and to monitor work performance and the proper use by employees of company equipment facilities.”⁵⁷⁵ Ensuing from authority and from the right to manage the workplace, the employer – who is also the owner of the company equipment – is entitled

565 ILO 2007. pp. 35–36.

566 Supiot 2002. p. 109.

567 European Network of Legal Experts in the field of Labour Law 2009. p. 16.

568 Economic dependency also exists, but its mere existence is not enough to establish the existence of an employment relationship. When it comes to economic dependency, the indicators of remuneration, bearing of financial risks and work performed solely or mainly for the benefit of the employer shall be examined.

See more in: European Network of Legal Experts in the field of Labour Law 2009. pp. 19–21.

569 European Network of Legal Experts in the field of Labour Law 2009. p. 16.

570 CJEU: Case C-27/91, 1991. par. 7.

571 European Network of Legal Experts in the field of Labour Law 2009. pp. 16–19.

572 International Labour Office, Governance and Tripartism Department and European Labour Law Network 2013. pp. 36–40.

573 Hendrickx 2002.

574 Hendrickx 2002. pp. 12–13.

575 Hendrickx 2002. p. 114.

to impose certain limitations on its use.⁵⁷⁶ For example, health and safety requirements, the protection and the correct use of the employer’s equipment, monitoring production processes and work performance and conducting quality control can justify employee monitoring.^{577, 578} Moreover, the employee has not only rights, but also certain obligations such as carrying out work in person, respect and cooperate with his/her colleagues, loyalty towards the employer – where controlling the compliance with these obligations can justify monitoring.

Monitoring employees’ use of SNSs might contribute to the enforcement of several of these rights. In the hiring phase, it is notably the employer’s right to choose the most adequate applicant that might be enforced though conducting social media background checks. Monitoring SNS use during working hours at the expense of working hours might constitute a method for the employer to enforce his/her interests and rights in the field of productivity, work performance and the protection of the work equipment. Monitoring SNS use beyond working hours can serve the purposes of protecting against employee conducts detrimental to the employer’s reputation or the leaking of business interests. On the details and the possibility of monitoring employees’ use of SNSs in order to achieve these interests will be dealt with in detail in Part II.

§2. Appearance of the right to monitor in national legal orders

It is worth noting that in the different languages used for the research different terminologies are used to describe similar phenomena. In English literature the expression right to monitor is used, while in French literature the expression employer’s power (“pouvoir”) is employed, comprising the prerogative to control work. The Hungarian literature mentions legitimate economic interests of the employer (“jogos gazdasági érdek”), as the main value is materialized in the form of the right of the employer to direct, to give orders and to control (“irányítási, utasítási és ellenőrzési jogkör”).

(A) France: the employer’s powers

In both countries subordination has great importance when it comes to determining the existence of an employment relationship. In French law, subordination is a key element of the employment relationship. The Court of Cassation defined the employment contract in its jurisprudence as “a convention according to which a person engages in performing work for another person under its subordination for remuneration.”⁵⁷⁹ The employment

576 Hendrickx 2002. p. 101.

577 Hendrickx 2002. p. 119. More specifically, the monitoring of the use of the employer’s equipment (e.g.

telephone, computer, Internet) may be justified by the following lawful purposes: monitoring work performance and quality control, monitoring compliance with different standards and procedures, investigating and detecting the security of the system, preventing crimes, collecting evidence of business transactions.

578 Roger Blanpain also identified property rights, the right to manage and employer’s liability amongst the employer’s legitimate interest to monitor (the employees’ use of computer). Blanpain 2002. pp. 43–44.

579 “Le contrat de travail est une convention par laquelle une personne s’engage à travailler pour le compte d’une autre et sous sa subordination moyennant une remuneration.” Cour de cassation du 22 juillet 1954 (Bull. civ. IV, no 576) referred to in: Le Lamy social 2019

contract – originally based on the idea that the worker leases his workforce – supposes the leasing of the employees’ workforce. As the employer could not take possession of the employees’ workforce, this lack was compensated by the employees’ subordination to the employer.⁵⁸⁰

In order to be qualified as an employment contract, three attributes must be present: the employee has to (1) perform work (2) under the legal subordination of the employer (3) in exchange for remuneration.⁵⁸¹ These main elements also appear in the definition of labour law provided by Gérard Lyon-Caen, who argued that labour law is “all the legal rules applicable to individual and collective relations between private employers and employees who work under their authority for a remuneration called salary.”⁵⁸² Subordination means that the employee is under the authority of the employer and is manifested in the employer’s power to give orders, and the employees’ correlative obligation to obey those orders.⁵⁸³ According to a landmark decision of the Court of Cassation, subordination is characterised by the “execution of work under the authority of an employer who has the power to give orders and directives, to control their execution, and to sanction the breaches of the subordinates.”⁵⁸⁴ Different indicators can help to determine the existence of subordination, such as the exercise of authority, the right to control whether employees comply, the right to impose sanctions (essential criteria),⁵⁸⁵ the employer bearing the risk of his/her activity, integration into the organisation,⁵⁸⁶ the equipment and raw material provided by the employer, work hours defined by the employer,⁵⁸⁷ the localisation of work.⁵⁸⁸ The subordinate relation originates from the submission to the employer’s regulatory, directive and disciplinary power in order to perform work on behalf of the employer.^{589, 590}

From the definition of the employment contract itself, the main obligations and rights of the parties (connected to the three central attributes: work, remuneration and subordination) can be identified. On the one hand, the employer shall provide work for the employee;⁵⁹¹ while on the other hand, the employee is obliged not only to work but also to be at the

580 Supiot 2000. p. 132.

581 Peskine – Wolmark 2016. p. 27. and pp. 27–34.; Bailleul – Jourdan 2011. p. 20. and pp. 20–22.; Hess-Fallon – Maillard – Simon 2015. p. 88., and pp.88–90.; Petit 2011. p. 74.

582 “L’ensemble des règles juridiques applicables aux relations individuelles et collectives qui naissent entre les employeur privés et les salariés qui travaillent sous leur autorité, moyennant une rémunération appelée salaire.” Source: Ray 2018a. p. 14.

583 Kéfer – Cornélis 2009. p. 782.

584 “[...] que le lien de subordination est caractérisé par l’exécution d’un travail sous l’autorité d’un employeur qui a le pouvoir de donner des ordres et des directives, d’en contrôler l’exécution et de sanctionner les manquements de son subordonné.” Cass. soc., 13 novembre 1996, N° 94-13187

585 Bailleul – Jourdan 2011. p. 22.

586 Peskine – Wolmark 2016. pp. 31–33.

587 Hess-Fallon – Maillard – Simon 2015. p. 90.

588 Petit 2011. p. 75.

589 Mazeaud 2016. p. 339.

590 Emmanuel Dockès draws attention to the fact that labour law was originally conceived based on the work performed by industrial workers. Therefore, attention should be paid when assessing the new forms of performing work. Jean-Emmanuel Ray has pointed out in one of his articles that technological changes may question the assessment of these indicators, and especially their effects on working hours and place of work might be “challenged”. Sources: Dockès 2004. p. 1. (Page number referring to the online version of the article downloaded from: https://www-dalloz-fr); Ray 1992. pp. 1–4. (Page number referring to the online version of the article downloaded from: https://www-dalloz-fr)

591 Cass. soc., 17 février 2010, N° 08-45298

disposal of the employer.⁵⁹² One of the employer’s main obligations is to pay remuneration for the work, while the employee has the right to be remunerated.

Following from the criteria of subordination, the employer has different powers in relation to ensuring the appropriate functioning of the workplace. The employer has the power to manage, to regulate and to discipline, while the employee must respect the instructions of the employer.⁵⁹³ The power to manage comprises several elements in order to organise work and is implemented through the right to give detailed orders. Giving instructions is not only a right: the employer is also obliged to do this, as it is his/her task to tell the employee how to perform the work. At the same time, it is also his/her right and obligation to control work and maintain work discipline.⁵⁹⁴ In accordance with these powers/

rights, the employee shall perform work according to the instructions of the employer.⁵⁹⁵ Both the French Labour Code⁵⁹⁶ (hereinafter referred to as: FLC) and the Hungarian Labour Code⁵⁹⁷ (hereinafter referred to as: HLC) contain some general provisions, which are present in both jurisdictions. The FLC states that the contract has to be executed in good faith,⁵⁹⁸ specify the employee’s obligation of loyalty⁵⁹⁹ and contain provisions relating to the declarations of employees.⁶⁰⁰ French labour law declares that the employee has to perform work with diligence and obligation of discretion.⁶⁰¹ The employer shall provide the necessary working conditions,⁶⁰² which connects back to his/her authority: he/she shall adequately organise the work, shall manage, instruct and inform employees regarding work, shall provide the necessary knowledge for work, shall control work and shall discipline employees. In both countries – in accordance with EU regulation⁶⁰³ – the employer has important obligations in the field of workplace safety and health: he/she shall ensure the conditions of occupational health and safety,⁶⁰⁴ while the employee shall respect safety instructions.⁶⁰⁵ The FLC also expressively regulates the issue of psychological⁶⁰⁶ and sexual harassment,⁶⁰⁷ making it the employer’s obligation to prevent these issues.

In French law, the employer, who is responsible for the organisation, management and the general functioning of the workplace,⁶⁰⁸ has certain powers to ensure its effective functioning.⁶⁰⁹

592 Article L3121-1 of the FLC

593 Article L3121-1 of the FLC

594 Casaux-Labrunée 2012. p. 335.

595 Article L3121-1 of the FLC

596 Code du travail

597 Act I of 2012

598 Article L1222-1 of the FLC and Subsection (2) of Section 6 of the HLC

599 Subparagraph 3 of Article L1222-5 of the FLC and Section 8 of the HLC

600 From Article L1222-2 to Article L1222-4 of the FLC

601 Hess-Fallon – Maillard – Simon 2015. pp. 106–107.

602 Hess-Fallon – Maillard – Simon 2015. p. 106.

603 European Union: Council Directive of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC)

604 Subparagraph 1 of Article L4121-1 of the FLC

605 Subparagraph 1 of Article L4122-1 of the FLC

606 From Article L1152-1 to Article L1152-6 of te FLC (Also from Article L1154-1 to L1154-2 and from Article L1155-1 to Article L1155-2)

607 From Article L1153-1 to Article L1153-6 of the FLC (Also from Article L1154-1 to L1154-2 and Article L1155-1 to Article L1155-2)

608 Cass. soc., 25 février 1988, N° 85-40821

609 Originally, two theories aimed to define the source of these powers. According to the “théorie contractuelle”, these powers originate from the employment contract itself, where the employee accepts the subordination

Originally, in the Brinon decision, the employer was perceived – as he/she is the one having responsibility – as the “only judge” to determine what decisions to make as regards the employees and the functioning of the workplace while complying with the legal regulations,⁶¹⁰ which granted extensive powers to the employer. Later, these powers were limited, especially by the adoption of the Act Auroux in 1982, which regulated, and therefore imposed limitations on the internal regulations and sanctions.⁶¹¹ The next significant act in the subject was the act of 31st December 1992,⁶¹² which (inspired by the “Lyon-Caen report”⁶¹³) inserted the famous article L120-2 into the FLC, guaranteeing the general protection of the employee’s liberties and rights – at the same time imposing limitations on the employer’s powers. With this article, the legislator laid down the foundations of the protection of the employee’s rights and freedoms. Three different employer prerogatives are distinguished: power to manage (“pouvoir de direction”), power to regulate (“pouvoir législatif” or “pouvoir réglementaire”) and power to discipline (“pouvoir disciplinaire”).⁶¹⁴

The power to manage suggests two different elements: the management of the company and the management of the personnel. It follows from the principle of the entrepreneurial freedom that the employer has the prerogative to decide how to manage his/her business.

As presented above, the Brinon decision acknowledged the employer’s power to freely – while complying with the legal regulations – take decisions regarding his/her business.⁶¹⁵ Resulting from the subordinate relationship between the parties, the employer has the power to manage not only the undertaking itself, but also the personnel: he/she can decide who to hire or who to dismiss, can give instructions, can determine the tasks, can organise workflow and (not only can, but is also obliged to) control, monitor the execution.⁶¹⁶

The employer’s power to regulate means that the employer is empowered to establish general and permanent rules, norms relating to the functioning of the workplace, notably through the adoption of an internal regulation.⁶¹⁷ Strict limitations were imposed on the internal regulation by the act of 4 August 1982, detailing the requirements set towards an internal regulation. Especially Article L. 122-35 inserted into the FLC is significant for the subject of the monograph. This article (inspired by the Corona decision of the State Council)⁶¹⁸ stated that “[the internal regulation] may not limit the rights of the individual or individual or collective liberties by any restriction which is not justified by the nature of

In document Adrienn Lukács Employees’ Right to Privacy and Right to Data Protection on Social Network Sites with Special Regard to France and Hungary (Pldal 79-90)