In a leading decision of January 17, 2013 the Federal Supreme Court (BGE 139 II 7) held that electronic surveillance at the workplace by using spyware that surreptitiously monitors the activities of employees is inadmissible.
There are many different ways for employers to monitor their employees. This case concerns the issue of whether electronic surveillance of employees by means of spyware is permitted.
According to article 328 of the Swiss Code of Obligations the employers must respect and safeguard the employees’ personal rights. Depending on how the electronic surveillance is designed, it may interfere with those rights. Measures that have the sole purpose of monitoring employees’ behaviour are particularly controversial and prohibited by the Swiss law. Further, pursuant to article 26 paragraph 1 of Ordinance 3 to the Employment Act, targeted and constant surveillance of employees at the workplace is prohibited. Electronic monitoring is only permitted if it is for a justifiable reason (e.g. reasons of security, organization or controlling production) and proportionate.
The three most common means used to monitor employees are video surveillance, telephone surveillance and monitoring of the internet use and email. Video surveillance is in principle only permitted for reasons of security and there must be the facility provided where employees are outside the camera’s field of vision. Furthermore, in general the employee must be aware of the video surveillance. Secret surveillance is only permitted in exceptional cases (e.g. seldom used cashiers’ offices or strong rooms).
Monitoring telephone traffic is permitted provided the employees have been informed in advance. Analysis of individual telephone conversations is in principle prohibited, save for the purposes of quality assurance, training purposes or conservation of evidence. The constant and personal targeted surveillance of the use of the internet and email by spyware, which is comparable to permanent video or telephone surveillance, is strictly prohibited. Provided employees are given prior notice, a general and anonymous collection of user information is permitted. To determine whether the surveillance is admissible or not, the interests of the employer and the interests of the employee are to be weighed against each other.
Failure to obey the above mentioned provisions can result in criminal sanctions against the employer and/or in claims for damages and satisfaction from affected employees.
Employers are well advised to devise and communicate clear rules concerning the use of multimedia devices (which will include email, telephone and internet use) as well as to inform their employees about any necessary surveillance activity that is to be undertaken.
Decision of the Federal Supreme Court of January 17, 2013; BGE 139 II 7.
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