Data protection at the workplace as seen from the court pulpit

Transcription

1 Data protection at the workplace as seen from the court pulpit Privacy in the workplace International Conference Pécs, April 2-3, 2012 dr. Kulisity Mária

2 Few cases related data protection - During the existing employment relationship the employees do not turn to the courts - The forum is not so effective: slow and not anonym. - To prove the fact of misuse ofpersonal data is difficult (evidence is in the employer s hand) - Different competent courts have right to proceed.

3 Which court/ competence penalty courts in case of misuse of personal data civil courts (local and municipal depending on the claim) labour courts The municipal court have a competence in case of personal rights offence if the claim is related to Civil Code 84. (statement of the offence, claim for stop the unlawful behaviour and prohibit the wrongdoer, claim for adequate gratification) If the claim is just for compensation (material and non-material), up to 10 Million HUF ( EUR) it belongs to the local court,

4 Civil or labour courts if the action originating in employment relationship: - The main rule: the labour court has a competence, - But if the case is a personal rights offence, a claim is not for damages, the municipal court (exception) Explanation: - The personal rights are superior, basic ( mother ) rights, not attached to one area (labour) Capital Appeal Court: 2.Pkf /2008/2.: Personal rights are the dominant and not the labour relationship between the parties. -In case of a list about who take part in a strike BDT 2008/1738: the injury of personal rights make a civil relationship between the wrongdoer and the other party, therefore the proper law is the civil law even if they have an employment relationship.

5 Labour Courts illegal data registration as an evidence Termination (visiting adult websites, theft registered by a camera) Special work duty (overtime) employees prove (entering chip cards, s) Compensation cases Parallel procedures

6 Illegal evidence 3 theories: 1.) because it is unlawful, it couldn't be used 2.) the verification is free, there is no order of the evidences, the law doesn t prohibit it. 3.) there is a need to balance the party's interest and need who is liable to prove and the other party's interest whose personal rights are injured. Whose interest, need is higher. Usually the courts take in the illegal evidence especially if there is no other way to prove. Separate issue: the party has a right to ask for compensation because of the use of the illegal evidence (from the other party)

7 Court cases BH The general interest to find out the truth Appeal Court of Pécs: Pf.I.20081/2009/3. The party couldn't ask to refuse the evidence, if he wants to validate his false statement

8 Surveillance inside the workplace Video surveillance in case of stealing Secret sound-recording employees in case - of termination , net surveillance, Mobil phone, gps Entering chip card Controlling: alcohol, drog tests, doctoral, psychological tests If it is relevant for the concrete work, the employee is obliged to cooperate unless if it is exercised improper way (in front of big audience, or it constitutes harassment)

9 Surveillance outside the workplace Secret video recording, private detective for example in case of illness. 102/1995 government decree rules regarding when and how the sick employee can leave his home

10 Some cases A bank administrator who have a contract for finance with the bank, but he did not pay the due amount, - The bank connect this information with his employment relationship, and during the trial period immediately terminate the relationship, there was only consent to manage data related the contract - The linking between the private data and the bank data was unlawful

11 Some cases II. A big company without the workers consent use a registration system on the mobil phone sim card, and he registered and hold data where the worker is every 15 minutes - The residency is personal data and the worker can be identified because of the mobil phone - The company forbid the outgoing calls because of sickness but it was registered as fraud barring. - One of the employee 2 years later terminate his relationship with extraordinary dismissal (deadline)

12 Some cases III. The plaintiff claimed for 5 Million HUF ( EUR) because the company used cameras he was dismissed because the camera recorded that he eats company s food - court: he give his consent with an implied conduct because there was a notice at the entrance of the company and he entered

13 Employer's regulation, policy Ore and more important Love relationships are prohibited in the workplace