The control of labor activity by automated means is one of those legal profiles that most differentiates the approaches of European law from that of the United States. In the U.S., wanting to simplify, prevalence is given to the managerial power of the entrepreneur and the protection of corporate property.
In the countries of the Union, on the one hand, there is recognition of the employer’s right to control the worker’s performance, as is legitimately the right of any creditor with respect to the performance of his or her debtor; on the other hand, it is considered that subordinating the worker in the performance of his or her work, to the control of the mechanical, pervasive and inelastic eye, is detrimental to the dignity of the individual.
There is a need, in the employment sphere, to strike a fair balance between these legitimate requirements, and it is on this balance that the legitimacy of employer controls on workers by automated means is played out.
European Court of Human Rights
The ECHR -which, as is well known, has jurisdiction to adjudicate compliance with the European Convention of Human Rights (ECHR) by its member states – has long established that respect for “private life,” enshrined in Article 8 ECHR, must also be extended to workplaces, where the relations of the working person take place (see Niemietz v. Allemagne, No. 13710/88, esp. para. 29; Copland v. UK, No. 62617/00, esp. para. 41; Bărbulescu v. Romania, No. 61496/08, esp. paras. 70-73 and 80; Antović and Mirković v. Montenegro, No. 70838/13, esp. paras. 41-42).
Thus, workplace checks can only be carried out in compliance with the safeguards provided by the applicable national law (Antovic and Mirković v. Montenegro, cited above, 28.11.2017).
In addition, the employer has an obligation to provide the employees concerned with all the information required by the Regulation regarding the processing of personal data related to their work activity; this obligation meets the need to enable the staff to be fully aware, before the processing begins, of the details of the processing (see, CtEDU – Case Barbulescu v. Romania, No. 61496/08, esp. paras. 133 and 140).
Recommendation of the Council of Europe
The Council of Europe among its traditional recommendations of the Committee of Ministers to member states, issued CM/Rec (2015)5 on the processing of personal data in the context of employment in which it provides that data processing carried out by means of information technology in the context of the employment relationship must comply with respect for the fundamental rights and freedoms as well as the dignity of the data subject, for the protection of workers and third parties (point 3).