Workplace Privacy

Author: Primož Jamšek

Recently, the Constitutional Court of the Republic of Slovenia addressed the issue of privacy in the workplace for the first time in its Decision No. Up-1134/18. In the case, the employer had installed a video recording device and a trap with marked bills in the nightstand of one of its wards (an elderly, disabled person) with the help of a detective, due to repeated thefts. The two measures proved to be effective, as the camera caught one of the nurses (“the employee”) stealing EUR 20,00 from the ward’s drawer. The footage obtained, together with other evidence (in particular the dust on the employee’s hand), subsequently presented the basis for the extraordinary termination of the employee’s employment contract.

The Constitutional Court emphasised that in the case at hand, the employee could not reasonably have expected complete privacy (such as in an office or the sanitary facilities), as the ward, due to their disability, was constantly present in the room in which covert surveillance was carried out. Nevertheless, in the Constitutional Court’s view, the very fact that the employee was performing her work duties in the ward’s room necessitated the conclusion that the employee could reasonably have expected at least a certain degree of privacy in the workplace. The employer’s covert surveillance thus constituted an intrusion into the employee’s privacy in the present case.

In the context of the assessment of proportionality, the Constitutional Court referred to the criteria established in the case law of the European Court of Human Rights in relation to privacy in the workplace, in particular in the Lopez Ribalda[1] case, where the employer also covertly carried out video surveillance of the employees at work (in this case, cashiers in a shop).

Despite the undisputed conclusion that the employer in the present case carried out video surveillance contrary to the provisions of ZVOP-1[2], the employer’s covert surveillance passed a strict proportionality assessment in the Constitutional Court’s view. The Constitutional Court pointed out that the employer’s surveillance was guided by the constitutionally permissible aim of protecting the privacy of the wards and their property and the related aim of detecting the perpetrator of repeated thefts. The Constitutional Court also emphasized that, in the circumstances of case at hand, the employer and the employees (including the employee in question) had a special responsibility to protect the rights of the wards, since the latter were unable to effectively ensure the protection of their own rights due to their age.

The Constitutional Court considered that the installation of a hidden video recording device and a trap with marked bills constituted an appropriate, necessary and proportionate measure to protect the interests of the wards. In the context of the strict proportionality assessment, the Constitutional Court (inter alia) highlighted as relevant that the employer had previously tried (unsuccessfully) to track down the perpetrator with the assistance of the police; that overt video surveillance did not have the same chance of success; that the covert surveillance was limited to the minimum possible in terms of space and time; that the footage obtained was intended only for the disciplinary treatment of the perpetrator and court proceedings; and that Slovenian law generally has safeguards to prevent abuse of employer surveillance.

Although the decision of the Constitutional Court was unanimous, affirmative separate opinions show that the judges are not entirely unanimous as to the underlying reasons. For example, Dr Špelca Mežnar and Dr Rok Svetlič consider that the Constitutional Court has defined the concept of privacy in the workplace too broadly. In this respect, it will therefore be interesting to follow the development of constitutional-court practice, in particular to what extent the Constitutional Court will apply the dogmatic premises of the decision in question to other areas of workplace privacy (e.g., in relation to the monitoring of work emails, work telephones, work computers).

[1] Judgment of the ECtHR in Lopez Ribalda and Others v Spain of 17 October2019.

[2] Personal Data Protection Act, the Official Gazette of the Republic of Slovenia [Uradni list RS], No. 94/07, including amendments.