BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

In the employment relationship, given the unequal distribution of economic and social power between the parties, the theory of the horizontal effect of fundamental rights gains prominence, being evident the necessity of protection of general fundamental rights in front of the power of the employer. In this way, as previously stated, the employee when entering a working relationship, he does not abandon his condition as a human person. Consequently, even in this kind of relationship, aspects of his personality and his dignity must be respected and protected. Therefore: It is not enough to receive salary and have guaranteed social rights, but is imperative to be treated with dignity and respect. Now, in a democratic legal system of law founded on the dignity of the human person, what is required is the full protection of the human person, seen the unity and indivisibility of all dimensions of fundamental rights. Thus, the recognition of the effectiveness of fundamental rights in the context of the employment relationship has important consequences. One of them is to allow the protection of personal and sensitive data of the employee even though there is no express provision in the legal system. This is because, by means of the gradual awareness of the need to protect the rights and constitutional values, as being inherent in the dignity of the human being, are recognized and enforceable within the employment relationship rights linked to privacy, private life, freedom of expression, prohibition of discrimination, freedom of ideology, among others. Following this line, it is concluded that, being the protection of personal and sensitive data a right which derives from the right to privacy and private life, it is necessary to extend such recognition and protection. On the subject, Ingo Wolfgang Sarlet 46 considers that: “[…] Where there is no respect for life and the physical integrity of a human being, where the minimum conditions for a dignified existence are not assured, where the privacy and identity of the individual are subject to undue interference, where their equality in relation to the others is not guaranteed, as well as where there is no limitation of power, there will be no space for the dignity of the human person, and this will be no more than a mere object of arbitrariness and injustice. The conception of man-object, as we have seen, is precisely the antithesis of the concept of the dignity of the human person.” It is clear, however, following the example of other fundamental rights, that the right to data protection does not have an absolute character in the employment relationship, which can be limited when in conflict with other fundamental right or constitutional provision, such as the enterprise organizational faculties (employment power). The solution, in this case, passes through the balanced effects of fundamental rights in employment relations.

46 SARLET, I. W. The effectiveness of fundamental rights: a general theory of fundamental rights in the constitutional perspective. Porto Alegre: Bookstore of the Lawyer, 2012, p. 104.

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