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08 June 2016
The Supreme Court recently issued a decision regarding Section 4 of the previous version of the Workers' Statute (Law 300/1970). The decision (9904/2016) concerned the remote monitoring of employees through an access badge verification system.
The court ruled that an unauthorised access badge radio-frequency identification (RFID) system was illegal and that the access badge system in question – in combination with data from the employee management system – facilitated the global monitoring of employees.
The case involved the dismissal of an employee which the trial courts had deemed to be illegal, as the relevant data had been collected via an illegal access badge system which monitored the employee in violation of Section 4 of the Workers' Statute without the written agreement of trade union representatives and was therefore unusable in court.
The Supreme Court underlined that monitoring an employee's entry to and exit from company premises via a monitoring system – intended to benefit employees, but also to monitor their attendance and performance – that has not been approved by trade union representatives or authorised by the Labour Inspector represents workplace monitoring under Article 4(2) of the Workers' Statute.
The Supreme Court upheld the trial court's assertion that an RFID chip in an access badge and a badge reader connected to a personnel office via a company's internet area network provide data regarding an employee's:
Therefore, in practice, such a system is not merely an employee attendance detector; it also enables the continuous remote monitoring of employee performance and attendance and provides a comprehensive means of remote monitoring.
The Supreme Court decision is noteworthy, but relies on the previous version of Section 4 of the Workers' Statute, which focuses on the functionality of employee monitoring systems.
The main change in the new version of the Workers' Statute is the interpretation of functionality in Section 4(1) and the new Section 4(2).
Under Section 4(1), audiovisual equipment and other tools that facilitate the remote monitoring of employees may be used exclusively for:
However, the new Section 4(2) provides that Section 4(1) does not apply to tools used to carry out work or monitor workplace access and attendance. Turnstiles operated by magnetic readers or RFID, barriers opened with remote RFID cards, smartphones, laptops and portable bar codes are all tools that facilitate remote monitoring. The use of smart devices as work tools does not imply that the operating system used necessarily involves remote monitoring.
The same principle applies to monitoring the entry and exit of employees to and from the workplace. Section 171 of the Personal Data Protection Code (Decree-Law 196/2003) confirms that the "breach of the provisions… of Section 4, first and second paragraph shall be punished, as provided for by Section 38 of Act no. 300 of 20 May 1970".
Section 4(2) prohibits employers from transforming a work tool into an instrument used exclusively for monitoring employees. If a monitoring system provides a comprehensive overview of an employee's performance it falls under Section 4(1). However, if the monitoring system provides data relating only to its general function, Section 4(2) will apply.
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