The Hungarian Government has very recently submitted to the Parliament the draft bill on the new Labour Code (the ‘Bill’) which is currently under general debate in the plenum.
As regards the current legal situation in Hungary, we already posted a summary on the general conditions for the processing of employee data, where we have concluded that the effective Labour Code secures only the minimum protection to worker’s privacy as the legislation in force currently does not regulate the data protection aspects of employment. Accordingly, the conditions and limitations of monitoring, such as the use of CCTV, the control of employee’s e-mail and internet usage have not been defined which caused legal uncertainty both to employers as well as to employees. Considering that only very little court practice is available in workplace privacy issues in Hungary, the case law of the Data Protection Commissioner is of particular importance. The Commissioner articulated in its opinions that the Labour Code does not provide a legal basis for the use of monitoring measures and certain practices – such as the use of covert monitoring, use of spy programs or monitoring of dressing rooms – could not be legitimized even if the consent of the employee has been granted hereto.
In contrast to the current legislation in force, it seems that the new Labour Code will introduce significant changes in the regulation of workplace privacy.
Under the Section “Protection of Personal Rights”, Article 9 of the Bill generally articulates that everyone shall respect the personal rights of persons covered by the Act. Interference with employee’s personal rights is permissible only if such restriction is inevitably necessary, proportional and provided that it directly conforms to the aim of employment. The Bill also states that prior notice must be provided to the employee on the method, conditions and duration of restriction of personal rights. An employee cannot waive generally his rights in protection of his person in advance. Further, statements relating to the personal rights of employees can be validly made only in written form.
As regards the provision of information from the employee, Article 10 of the Bill lays down that an employee shall only be requested to make a statement or communicate data which does not violate his/her personal rights and which essentially provides substantive information for the aspects of the establishment, performance or termination of an employment relationship. An employee shall only be requested to take an aptitude test which is prescribed by employment regulations or if it is necessary to exercise a right or perform an obligation laid down in an employment regulation. The employer must provide notice to the employee on the processing of his/her personal data. Employers may only disclose facts, data and opinions concerning an employee to third persons in the cases specified by law or with the employee’s consent. However, data pertaining to an employee may be transferred for statistical use also without consent provided that this is made in a manner which precludes identification of the individual employees.
The Bill also expressly authorizes the use of data processors on the part of the employer. In order to perform obligations deriving from employment, the employer may – upon specification of the purpose of data transfer and in conformity with legal provisions – transfer the personal data of the employee to a data processor. The employee must be informed in advance of such transfer.
Finally, in its Article 11 the Bill generally authorizes employers to introduce monitoring measures. The Bill lays down that the employer can monitor the conduct of its employee, however, such measures may be performed only in the context of employment and the means used for monitoring may not violate human dignity of the worker. As to exclude all possibility of doubt the Bill also states that the private life of the employee cannot be monitored which is in conformity with the practice of the European Court of Human Rights. In addition, the employer must give notice to the employee in advance on the use of technical means serving the control / monitoring of the employee’s conduct.
As regards worker’s consultation and information, the Bill provides that the employer must consult with the Works Council before implementing measures and internal regulations affecting large number of employees, which information obligation covers, inter alia, processing and protection of personal data of employees as well as the use of technical measures used for employee monitoring.
Summarizing the above, the Bill on the new Labour Code lays down a legal basis for monitoring measures, it defines the limits for privacy intrusions and it expressly states that the employer must provide detailed written information to employees on the processing of employee data.
The new Labour Code is scheduled to enter into force by 1 July 2012. We will report once the Bill will be adopted by the Parliament.
UPDATE: The Bill has been adopted by the Parliament on 13 December 2011 without change / amendment of the above provisions. The consolidated version of the new Labour Code (signed by the President of the Parliament) is available under the following link:
