Monitoring (working from home) employees: what is the role of the Works Council?

Although many home workers cannot wait to return to the workplace, a large proportion indicate that they still want to work from home (in part) even after the corona pandemic. This development means that there may be a greater need for employers to monitor employees. But this cannot be done just like that. This is because when monitoring, it is important to ensure the privacy of employees. This is why the Personal Data Authority (AP) recently published the so-called "Works Council Privacy Booklet," which clarifies the role of the works council (OR) in monitoring.

Monitors

There are several ways for companies to monitor their employees through employee tracking systems. Examples include a track and trace system in company vehicles, tracking software that records what employees do on their computers (such as logging in and out, keystrokes, e-mail and Internet use) and apps or wearables (such as a smartwatch) that measure health. There are also the "traditional" methods such as recording phone calls or placing cameras in the workplace.

As an employer, you must be able to argue well why monitoring your employees is necessary and that your business interests outweigh the invasion of your employees' privacy. What is and is not allowed may vary from case to case and from sector to sector. In addition, it is important that employees are informed about the monitoring in advance. Covert monitoring of personnel is only allowed in very exceptional situations.

Right of consent of the works council

When, as an employer, you are considering monitoring your employees, you should involve the Works Council. This is because the employer must, by law, seek the consent of the Works Council for decisions on:

• arrangements for processing and protecting the personal data of personnel, and
• arrangements aimed at or suitable for observing or monitoring staff attendance, behavior or performance.

This therefore means that the Works Council has the right of consent with respect to the establishment, withdrawal and modification of a personnel monitoring system and with respect to regulations that deal with the processing of personal data. To support the Works Council in the considerations they must make in this regard, the AP has developed the Works Council Privacy Booklet. The booklet defines what is meant by personal data and when processing is involved. It also includes examples and suggestions of questions the Works Council can ask if the employer proposes such a regulation.

The Works Council Privacy Booklet thus gives the Works Council tools to (even better) ensure employee privacy. As an employer, make sure that you are aware of the contents of the OR privacy booklet so that you are not faced with surprises and are well prepared for the requirements (in the law) of monitoring employees.

Do you have questions or want more information about employee monitoring and/or the role of the Works Council? Please feel free to contact me.