RIGHT TO PRIVACY OF EMPLOYEE -legitimate restriction and protection-

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1 RIGHT TO PRIVACY OF EMPLOYEE -legitimate restriction and protection- Seminar for young researchers on European Labour Law and Social Law University of Warsaw, Poland April 2015 Milica Kovač-Orlandid

2 REASONS FOR CHOOSING THIS SUBJECT This subject has been very important in practice, lately. The judicial case law all around the world shows that employees increasingly face the violation of their privacy in the workplace. The process of globalization and progress in technology make this topic even more attractive. The development of science, technology and genetic engineering put even the most democratic countries to the serious test, regarding the protection of right to privacy. This topic doesn't get enough attention of Labour law theory and Labour law legislation in many countries. In fact, there are only a few those who directly deal with this issue. Social partners, as well, do not deal with this issues a lot. This subject gives us a great opportunity to find out the connection and mutual relation between right to privacy as a civil right, on one side and socio-economic rights of employee, on the other side. All these rights are parts of the entire system of human rights and they all have the same purpose: protection of human dignity.

3 DESCRIPTION OF THE TOPIC OF RESEARCH Right to privacy is an individual, complex and inalienable civil right that belongs to every individual, every human being. This right protects the moral and psychological integrity and the dignity of any individual, including employee in the workplace. There is a wide range of questions considering employee's right to privacy. Mostly, they are related to employment terms and selection of applicants, discrimination on ground of elements from private life of employee, mobbing, medical testing, drug testing, genetic testing, video surveillance, monitoring the use of , phone and other correspondence, as well as, use of internet, investigation of the employee s/applicant s past, separation private from professional life of employee, his behavior out of workplace and out of working time, privacy of specific categories of employees such as public officers, teleworkers and so on. The entire issue about employee s right to privacy arises from a really opposite interests of employer and employee. In order to make good business result, employer wants to get a lot of information about employee and his behavior. But naturally, employee wants to keep his intimacy and his autonomy, as much as it is possible.

4 The first collision of these two different interests appears during the hiring process when employer might want to know more facts about applicant than it is necessary, especially facts about his family status, his marital status and his family responsibilities. The collision of these two different interests is even more evident during the employment relationship. Employer, as a business owner, wants to control working process completely, and this sometimes may include the control of employee s private life. Considering these circumstances, protection against discrimination on ground of elements from employee's private life, should be stressed. Development of modern technology brings, as well, many challenges related to medical testing, drug testing, genetic testing, video surveillance, monitoring the use of , phone and other correspondence, as well as, use of internet. The most sensitive question is related to the elements from employee's private life, those that can be considered to be allowed or unallowed reasons for termination.

5 MAIN RESEARCH QUESTION AND SUB-QUESTIONS Under witch conditions and under which circumstances right to privacy of employee can be restricted and how its protection in the workplace can be provided? In other words: which reasons and in which situations justify restriction of employee's right to privacy? to what extend employee's right to privacy can be restricted? how to evaluate justification of the reasons for restriction of employee's right to privacy how to decide whose interest (employer's or employee's) is more significant in certain case? is it possible to draw a clear line between private and professional life of employee? how to guarantee the protection of right to privacy of employee?

6 OBJECTIVE OF RESEARCH PROJECT Objective of research project is to try to give answers to the above questions. These answers will serve to legislator, social partners and employer to understand right to privacy and its connection to workplace. These answers should, also, help them to create optimal laws, regulations, collective agreements, policies, procedures and practice. The objective of research project is to find out general principles, criteria, tests and concepts that should be used whenever problem related to employee's privacy occurs.

7 PRELIMINARY RESULTS Right to privacy of employee, like any other human right, can be restricted under certain conditions. But, this possibility should be considered carefully. Employee's right to privacy could be restricted only by applying three principles: the principle of legitimacy, the principle of proportionality and the principle of transparency. The first one means that right to privacy of employee can be restricted only if there is a necessity to protect some important and justified interest of employer. If there is justified interest or not, it is a hard question, and in order to answer it, an individualistic approach might be required. The interest should be connected to at least one of the following two reasons: business reason or responsibility reason. The second one means that restriction of employee's right to privacy has to be proportional to the aim that should be achieved. Actually, even if the employer's interest is justified in the certain case, it should be assured that employee's privacy will not be restricted more than it is necessary. The third one should help creating something that is called reasonable expectation of privacy. This means that employer has to determine the level of privacy which is reasonably expected to exist in each specific case. This also means that employer is supposed to inform employee about any control, as well as, about any other restriction of right to privacy which he intends to carry on.

8 In order to apply these three principles, the most important step is to find out the right level of both (employer s and employee s) interests that should meet. It could be done by applying balancing test of interests in order to decide to which one, in each particular case, priority should be given and to what extent. Everything not covered by above three principles will not be considered as a legitimate restriction of employee's right to privacy. Instead of that, this will be considered to be (illegitimate restriction) the violation of right to privacy. The most serious question concerning this subject, is related to employee's behavior out of workplace and out of working time. Generally, everything that happens out of workplace and out of working time is employee's privacy and autonomy. However, the line between these two spheres is not quite clear, especially with the certain categories of employees, such as a public officers. In certain situations, employee's off-work activities can affect the workplace and cause damage to the employer. In order that not happen, employer could expect employee to behave appropriately out of his work, as well. However, it is not easy to make, in advance, a list of the activities which could be considered to be unallowed.

9 The protection of employee's right to privacy requires a more active approach of legislator, social partners and employer. Mainly, legislation deals with prohibition of taking facts from private life as terms of employment. Legislation, also, prohibits facts from private life to be taken as reasons for termination. But, apart from that, legislator should give us procedural and formal guarantees that employee s right to privacy will not be violated. Social partners, by collective agreements, could solve many difficulties related to this issue and develop good and fair practice in this field. Employer, as well, could contribute to protection of this employee's right by fair and transparent policies, procedures and practice. These activities should introduce employee to legitimate reasons for restriction of his right to privacy. In addition to this "internal" protection of right to privacy of employee, we can, also, analyze judicial and non-judicial protection at the state level but also at the international level.

10 METHODOLOGY OF THE RESEARCH The research of this subject requires use of many methods, including normative (international and national), comparative, analyzing, developing concepts, historical, sociological and psychological. Results obtained by application of normative and comparative methods will form the base for further research. For de lege ferenda research it is important to use analyzing method. Also, the research will partly be based on sociological method because right to privacy could be directly or indirectly connected to a large number of social processes. Psychological and historical method will be used slightly. The developing concepts method is very useful in order to reach concepts that are created by theory and judicial case law.

11 MAIN QUESTION(s) TO BE DISCUSSED When will employee's behavior out of workplace and out of working time be considered to be allowed reason for termination and how we will make, in advance, a list of such activities? Will this be possible, considering the fact that there are many different jobs with different duties and responsibilities. By what general criteria decision should be made? How to justify intrusion into employee's privacy? How to justify restriction of this human right? The answers should consider the fact that everything out of workplace and out of working time belongs to employee's privacy.

12 RIGHT TO PRIVACY OF EMPLOYEE -legitimate restriction and protection- Thank you for your attention Milica Kovač-Orlandić

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