Posted on August 29th, 2014 in Uncategorized | Comments Off on The monitoring of the employee and the right of privacy
It is the employer’s right to monitor, using lawful means, the activities performed by employees in the workplace, especially with the purpose of the inspection is to regulate the development of business activity. This right becomes a power: the power of steering (or supervisory), which arises from the fact that he is the owner of the business and takes risks.
Many questions arise about this controlling power that employers have over employees. Nowadays, with the technological advancement, which enables more effective means of monitoring the activities of the worker opens scope for abuse. It is at this point – the possibility of abuse by employers – that it is necessary to examine how the company can and should exercise the governing power.
It happens that, despite being legitimate in theory, such supervision by the employer, the employee has the right to privacy (article. 5, section XII of the Constitution of 1988). This right can somehow suffer harmful interference from the employer.
It is necessary then analyzed from the legal nature of the employment contract to the manner permitted by law to resolve conflicts between governing power and right to privacy.
According to doctrinal and jurisprudential understanding, beyond pointing Article 442 of the Labor Code, the adjustment will of the parties is essential to the validity of the employment contract condition. ie, employee and employer must adhere to the contract they consensually established.
However, despite having the imposition of this mutual agreement, it is natural and even necessary that the employee be put in a position of subordination to the employer. Thus, he agrees that its activity is directed by the latter, which has enforcement power by virtue of being the owner of the business and take risks.
The company therefore has the prerogative to regulate activities performed by their subordinates. But employees should have prior knowledge of all working conditions, including with respect to surveillance will be subject.
Prior knowledge of contract conditions, especially with regard to control, has the purpose of guaranteeing them the inviolability of the rights to privacy, honor and intimacy. The Constitution, in its article. 5, section XII, asserts that are inviolable privacy, private life, honor and image of persons, guaranteeing the right to compensation for property or moral damages resulting from the violation. These rights are guaranteed to all individuals, regardless of legal relationship to which they are subject. Therefore, such rights must also be observed in labor relations.
It is clear that there is a latent conflict between the employer’s right power and the right of privacy of the employee. And it is necessary, therefore, to seek ways of resolving this conflict.
The doctrine and jurisprudence elect the application, in this case, the principle of proportionality as the most appropriate manner permitted by law to resolve the issue. i.e., one must assess how necessary is the interference of a right in the other and what is the degree of mitigation that one will suffer for the other.
Thus, provided there is proportionality, it is entirely legitimate for the employer to monitor his business activity and, consequently, the services provided by its employees. The employer has no right for the employee, but on how their activity is exerted.
We conclude, therefore, employer is fully legitimate to monitor the services provided by the employees, provided they do so in a reasonable and proportionate way.