BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

If an employer has serious grounds for monitoring, the most highly recommended policy prior to the launch of monitoring comprises three steps. Employers should (i) discuss the scope, manner and duration of the monitoring mechanism with employee representatives (or the employees themselves if there are no representatives) prior to its introduction; (ii) inform the employees; 40 and (iii) obtain their consent. 41 In the Bărbulescu case, the ECtHR re-confirmed that an employer may check the time spent on the internet. 42 The Court held, by six votes to one, that there had been no violation of Article 8 of the Convention. It seems reasonable for the sake of pending disciplinary proceeding to surveil the nature of the websites browsed and the dates and times of browsing. However, it is restricted to monitor the content of pages visited, chat, or email communications even if they are sent from a work email address (name@ company) as this would be considered an invasion of privacy under Czech, Polish, Romanian, and Slovak law. 43 The employer monitoring was held to be limited in scope and proportionate since it did not examine other data or documents that were stored on the computer. In addition, it was only after Mr Bărbulescu denied this charge that the company investigated by accessing the account. In contrast to these countries, there is nothing comparable to a French doctrine that internet use during working hours is presumed to be for professional purposes and so an employer can have almost unrestricted access to an employee’s internet usage during working hours. Oddly enough, there are some similarities among the Czech, Romanian, and French court decisions on one hand, and the Bărbulescu case on the other. For example, according to the Czech Supreme Court’s decision, an excessive use of social media during working hours can justify an employee’s dismissal, and covert surveillance can be performed under not very limited circumstances, such as to prevent and/or detect crime. The Czech Supreme Court held that an employee who had made excessive use of the internet for non-professional reasons during office hours had committed an act of gross misconduct justifying immediate dismissal. To the disillusionment of most practitioners, the Czech Supreme Court ruled so despite the fact that the employer monitored the employee, who was later dismissed, without having informed him in advance. 44 In an interview I conducted with the three justices in this case, they reasoned that 41 Although this requirement is not set forth in the law, such a practice may mitigate legal consequences connected with the violation of employee privacy, because this limits reasonable expectations of privacy. See BARANCOVA, H. (ed.): Monitorovanie zamestnancov a právo na sukromný život, Bratislava 2010, p. 114 and footnote number 171; MORÁVEK, J. Kdy je možné evidovat přístup zaměstnance na internet a otevřít jeho e-mailovou poštu? (When is it possible for an employer to monitor employee use of the internet including his or her e-mails?) Právo pro podnikání a zaměstnání , 2010, Issue 3, p. 3-7; FLOREK, L. (ed.): Kodeks pracy. Komentarz. 5 th Edition, Warszawa: Lex and Wolters Kluwer business, 2009, p. 90; or the Polish Supreme Administrative Court decision 4 April 2003, file number II SA 2135/02, M. Prawn. 2003/10/435. 42 Judgment Bărbulescu, marginal number 59 in fine. 43 Judgment Bărbulescu, marginal number 60. 44 Decision 16 August 2012, file number 21 Cdo 1771/2011. 40 Halford v. the United Kingdom , judgment of 25 June 1997, marginal number 41. Judgment Bărbulescu, marginal number 43.

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