Video surveillance in the workplace

Labour law perspective

Companies are increasingly tending to monitor their employees by means of technical surveillance measures at their workplace. This leads to the people concerned feeling controlled and pressurised. From a business perspective, caution is required, as such monitoring can, in particular, violate the privacy and personality of employees.

It should be noted in advance that surveillance measures by employers are generally only prohibited for the purpose of monitoring employees. Surveillance and monitoring systems that are intended to monitor the behaviour of employees in the workplace are therefore generally not permitted. This follows from the general provision on the protection of employees’ privacy, Art. 328 of the Swiss Code of Obligations (OR, SR 220), and Art. 26 of Ordinance 3 to the Labour Act (ArGV 3, SR 822.113). Such monitoring and control systems may only be used in exceptional cases and only if they are necessary for other reasons (e.g. video recordings for training purposes).

The employer must then be able to demonstrate an actual need as to why a particular monitoring system is required. When selecting, installing and designing the surveillance system, the employer must ensure in particular that the privacy, personality and freedom of movement of the employees is impaired as little as possible. In addition, the employer must of course also comply with the applicable data protection regulations (more on this in a moment).

In practice, drawing the line between permissible surveillance based on an actual proven need on the part of the employer and prohibited monitoring of employee behaviour is a difficult balancing act that must be addressed with a specific case-by-case assessment. This is due to the fact that even trivial measures such as electronic badges for access to the company, the recording of entry and exit times or the automatic recording of journeys made by company cars for the purpose of optimising routes economically can be legally qualified as a monitoring system. On the other hand, trivial everyday phenomena such as the prevention of theft, espionage, damage to property, trespassing, attacks on employees or even economic process optimisation can be listed as actual needs for such monitoring. There are legitimate reasons for or against surveillance on both sides, but they must be weighed against each other. The more drastic the effect of the surveillance measures on the employee’s personal rights, the more significant the employer’s reasons must appear. If possible, the employer should always choose less intrusive alternatives. For example, video recordings can be restricted to individual critical areas in the company or by means of technical measures (e.g. masking). Surveillance can be considered a proportionate measure in particular if it is only carried out retrospectively or indirectly and is not permanent.

Data protection perspective

If personal data is processed as part of a surveillance measure, the employer is also required to comply with the provisions of the Data Protection Act (DPA, SR 235.1) and the Data Protection Ordinance (DPO, SR 235.11). In principle, data protection law is similar to labour law. If an employee’s personal rights are violated as a result of the surveillance measure, a justification is required in accordance with Art. 31 para. 1 FADP. This can take the form of an overriding private or public interest. The employee’s consent should only be viewed with caution as a justification, as a free decision cannot generally be assumed due to the subordination relationship under labour law.

Furthermore, data processing must comply with the principle of good faith, the principle of publicity and the principle of proportionality (Art. 6 para. 2 and 3 FADP). In this context, informing employees in advance is crucial. It is advisable to describe the monitoring in regulations drawn up specifically for this purpose. The employer must also be able to demonstrate that the technical monitoring is proportionate, i.e. it must have demonstrably clarified whether the objective could not have been achieved by milder means.

Practical examples

In a case that was judged by the Federal Supreme Court on 5 November 2012 (see BGE 139 II 7), spyware was secretly installed on the computer of a civil servant to monitor his computer usage. In this case, the spyware actually revealed that the civil servant used his computer for private purposes for 5,863 minutes out of a total of 8,297 minutes of working time without any connection to his work. The judges at first instance and the Federal Supreme Court came to the conclusion in this case that the evidence collected could not be utilised and that the monitoring was not lawful due to a lack of actual need. The court ruled that the employer had seriously violated the employee’s personal rights by using this spyware. As soon as there was any suspicion, the employer could have first checked the log files of the employee’s computer and then reprimanded the employee if necessary. As the spyware was installed directly in order to gather evidence and dismiss the employee without a warning, the court judged that the employer’s interests did not outweigh the employee’s personal rights. This therefore constituted a case of unauthorised surveillance for the purpose of monitoring behaviour.

In its decision of 13 July 2004, the Federal Supreme Court held (see BGE 130 II 425) that a GPS navigation system in a company car is to be qualified as an impermissible monitoring system if its sole purpose is to monitor the behaviour of employees. On the other hand, such a monitoring system is not prohibited if justifications such as planning and organisation or the economic optimisation of route guidance can be put forward.

Developments

Particular care should be taken with methods for analysing personnel data (people analytics, HR analytics or workforce analytics). These methods are used to evaluate internal company data (targets, resources, marketing, sales, productivity resources, etc.) in order to better understand an organisation’s resources, predict its requirements or improve performance. With such methods, particular attention must be paid to compliance with labour and data protection regulations. Due to the purpose of the analysis, the employer is therefore recommended to evaluate and analyse the data in anonymised form. The same applies when analysing peripheral data relating to the employer’s use of the Internet and e-mail. The employer can choose whether this data should be anonymised, pseudonymised or analysed in its original form. In accordance with the principle of proportionality, it is the employer’s duty to choose the form of analysis according to the purpose of the analysis. The mildest means should always be chosen that contributes to the achievement of a legitimate objective and represents the least interference with the employee’s personal rights.

Summary

To summarise, it can be said that caution is advised when using technical monitoring systems in the workplace. Surveillance measures that serve purely to monitor the behaviour of employees are always inadmissible. Otherwise, the employer must be able to demonstrate an actual need that outweighs the personal rights of the employees.

In order to master this balancing act, SECO has drawn up a checklist for the use of technical surveillance equipment, which can be used to help with the assessment.