Right to privacy and safety of the employees

On 6 March 2020, the employer ordered all employees of his plant to notify the employer of their return from trips abroad in order to decide on the further course of action to safeguard other employees and the production continuity.

On 28 and 29 March 2020, i.e. on his days off, an employee travelled from Poland to the Netherlands as a driver under a contract of mandate with another entity. The employee was recorded by the Border Patrol when crossing the border. A regulation of the Minister of Health imposing a compulsory 14-day quarantine on persons returning from the Netherlands/Germany was effective in Poland on those days. Exempt from the obligatory quarantine were, among others, drivers performing international road transport services.

The employee returned to work after the trip. After a few days he informed his employer that he was in quarantine. During a telephone conversation he misled the employer by telling him that he had not travelled abroad. The employer checked the information through the emergency services, which confirmed that the employee had travelled abroad. The employee lied several more times that he had not crossed the border. The employer disciplinarily dismissed the employee, justifying the dismissal by, among other things, violation of health and safety regulations and loss of confidence.

The employee filed a lawsuit for reinstatement claiming, among other things, that there was no law that obliged the employee to inform the employer about what the employee did in his free time, and by demanding such information the employer restricted the freedom of movement guaranteed by Article 52 of the Polish Constitution.

In its judgment, the Court ruled in favour of the employer. In the statement of reasons, the Court indicated that the employee was obliged to perform work conscientiously and diligently, and to comply with the orders of his superiors relating to work as long as they were not contrary to law or the employment contract. 

The court emphasized that organizing work in accordance with the principles of occupational safety and health was also the employee's duty, and his behavior violated:

At the same time, it should be recognised that the employee's conduct violated the constitutional rights of other workers. Pursuant to Article 66 of the Constitution, every employee has the right to safe and hygienic working conditions - the employee did not inform the employer [and thus his colleagues] about staying in a possible contamination zone, which posed a real threat to the other workers.

It is important to note that the employer demanded information which did not lead to negative consequences, such as dismissal, but only to the obligation to undergo quarantine with retaining the right to the remuneration. Withholding the information, on the other hand, posed a life-threatening risk to co-workers and a possible paralysis of the employer's business.

The court explicitly ruled that the health and life of employees was a higher value than the right to privacy, citing recital 4 of the GDPR:

It should be stressed that in the commented case, the violation of privacy was incidental when it was limited to providing information about the trip abroad and not any detailed information about the stay in specific places.

According to the Court, the employer's actions complied with the main principles of processing set out in Article 5 of the GDPR, such as lawfulness, fairness and transparency, and data minimisation.

At the same time, the Court indicated that Article 207 of the Labour Code, which obliged the employer to protect the health and life of employees by responding to the needs to ensure health and safety at work and adjusting the measures taken to improve the existing level of protection of health and life of employees, taking into account the changing conditions of work performance, should be interpreted as the solid basis for the employer's actions.

Since the very beginning of the coronavirus pandemic, Polish enterprises have not received clear guidance on how to properly process employees' personal data in relation to the COVID-19 threat. Until the date of the judgment, the Polish Supervisory Authority provided only very unclear guidelines which boiled down to saying that decisions on special protective measures, e.g. temperature measurement or declarations on travelling abroad, could only be implemented by employers on the basis of an approving decision from the GIS (pol. Główny Inspektorat Sanitarny / eng. Chief Sanitary Inspectorate).

The new situation required employers to take quick and effective actions aimed not only at the safety of employees, but also at maintaining production. In most cases, this meant acting against recommendations and risking sanctions from the Supervisory Authority.

The judgment must be considered righteous and an important tool for employers in ensuring workplace safety and in the overall fight against the pandemic.