Can You Monitor Your Employee's Cell Phone? – The Hungarian Supreme Court's Ruling

 
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During this summer, the Hungarian Supreme Court (Curia) made a judgement in a case, where the central question was whether the monitoring of the employee's own cell phone used for job-related purposes by the employer was lawful. Although the legal framework was slightly modified lately because of the entering into force of the GDPR, the case can offer important lessons. Read our short article if you would like to know whether you can monitor your employee's cell phone which he uses for job related purposes.

1) Facts

The claimant of the case the employee worked as an on-trade regional manager at the defendant company. The defendant, the employer provided the employee with a notebook and a SIM-card in order for him to be able to perform his job-related tasks. The Employee put the SIM-card in a cell phone owned by him and used the mobile phone for job-related purposes.

During an internal investigation the Employer requested the handover of the IT devices used by some of his employees for work, among other he requested the handover of the Employee's notebook and cell phone. The Employee has handed over the notebook and the phone and the Employer checked them.

Later, the parties terminated the employment relationship by mutual agreement, but the Employee attacked the agreement and requested the court to reinstate his employment and claimed non-material damages. Among others, the Employee claimed in the case that the investigation of the Employer during which he checked the Employee's own cell-phone was unlawful.

2) The decision of the Curia and its justification

While the first and second instance courts dismissed the Employee's action, the Curia has formed a completely different standpoint. Although he has not ordered the reinstitution of the employment, the Curia established that the monitoring carried out by the Employer was unlawful because of the below reasons.

Even the labour code in force at the time of the case declared that employers may only monitor the employment related behaviour of their employees and the monitoring cannot undermined the employee's human dignity.

The Curia however established in relation with the monitoring carried out by the Employer that is was not clarified whether the Employer could have used other less invasive monitoring methods and whether the monitoring procedure was carried out with suitable safeguards.

That is why the Curia came to the conclusion that during the investigation the Employer has unlawfully...

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