Informing employees and third parties about surveillance in the workplace

This page was last modified on 10-03-2016

The legislation on the processing of personal data is aimed at the protection of liberties and fundamental rights of natural persons, and notably their private life while respecting the interests of legal entities.

This means that surveillance in the workplace is, in principle, not permitted.

The National Commission for Data Protection (Commission nationale pour la protection des donnés - CNPD) may however authorise the business to use, on request, specific surveillance measures strictly limited to certain cases only.

In any case, the employer must respect a clearly defined procedure and, specifically, inform the employees about the surveillance measures in the workplace.

Surveillance includes all activities conducted by means of technical devices and covers the regular monitoring, collection or recording of data from one or more persons in relation to their behaviour, movements, communications or use of electronic and computing equipment.

Who is concerned

The employer must request an authorisation from the CNPD if he has legitimate reasons to implement surveillance measures in the workplace, such as:

  • video surveillance;
  • electronic access control (e.g. electronic ID badges);
  • electronic monitoring of working time;
  • tracing and/or recording telephone conversations;
  • controlling the use of internet and emails;
  • global positioning systems (GPS), etc.

The employer must keep the following parties informed about the measures implemented:

  • the employees subject to surveillance in the workplace;
  • external parties not employed by the business (clients, suppliers, visitors) who may be subject to direct or indirect surveillance;
  • the staff representatives (the joint works committee - until the next social elections - or, failing this, the staff delegation or, failing this, the Inspectorate of Labour and Mines).

It should be noted that joint works committees (also "joint works councils") will cease to exist after the social elections which take place after 1 January 2016. As from these elections, the tasks and duties assigned to joint works committees will be transferred to the staff delegations in companies with at least 150 staff members during the 12 months preceding the first day of the posting of the announcement of elections.

Until these elections, the joint works committees currently in place will continue to carry out their tasks.

How to proceed

Legitimate reasons for surveillance in the workplace

Implementing surveillance measures is only possible for reasons related to:

  • the protection of the workers' health and safety;
  • the protection of the goods (in a restricted sense) of the business;
  • the monitoring of the production process carried out by machines;
  • the temporary check of the production or the employee's performance if it is the only way to determine the employee's salary;
  • the work schedule planned in accordance with flexible working hours.

The temporary control of the production or of the worker's performance is, in principle, not authorised, except if it constitutes the only means to determine the precise salary of the employee.

The legislation in its current form does not allow surveillance in the workplace for reasons related to:

  • the protection of the economic, financial and commercial interests of the persons responsible for processing data;
  • the observation of illicit or immoral behaviour;
  • the optimisation of work planning.

Even the employees' specific consent to surveillance in the workplace (for example, in their employment contract) does not automatically render legitimate such surveillance.

Required approvals

Employers who seek authorisation to implement the surveillance of employees in the workplace must:

  • request an authorisation for the processing of personal data from the CNPD;
  • communicate the surveillance measures implemented to:
    • the employees who are likely to be concerned by the surveillance;
    • the staff representatives;
    • external parties not employed by the business (clients, suppliers, visitors) who may be subject to direct or indirect surveillance;
  • obtain the approval of the joint works committee (until the next social elections), where applicable;

Surveillance measures for the protection of business property or the monitoring of the production process carried out by machines do not require the approval of the joint works committee.

It should be noted that joint works committees (also "joint works councils") will cease to exist after the social elections that take place after 1 January 2016. As from these elections, the tasks and duties assigned to joint works committees will be transferred to the staff delegations in companies with at least 150 staff members during the 12 months preceding the first day of the posting of the announcement of elections.

Until these elections, the joint works committees currently in place will continue to carry out their tasks.

The employer must, in principle, inform each employee individually and in writing as well as the joint works committee (until the next social elections) or, failing this, the staff delegation, or, failing this, the Inspectorate of Labour and Mines (Inspection du Travail et des Mines - ITM).

However, in the case of video surveillance, it is sufficient to put up a sign informing about the surveillance.

Where data is being recorded, it is advised to clearly indicate that each individual has the right to access and modify the data.

Special cases:

Video surveillance

If the employer has legitimate reasons, he may use video surveillance in the workplace provided he has been granted an authorisation by the CNPD.

If video surveillance is concerning persons who are not members of staff and if it is not recorded in any form, the employer is exempt from prior authorisation and he must simply notify the CNPD that video surveillance has been implemented.

Controlling the use of internet and emails

'Cyber surveillance' is a particularly sensitive topic as it affects the private lives of employees. Any form of control of the use of internet and e-mails are subject to an authorisation.

If it is authorised, controlling the use of the internet and e-mails must be carried out in respect of the CNPD recommendations.

Surveillance of telecommunications

Recording telephone conversations is forbidden, unless it is the only means to provide proof of a commercial transaction or communication.

It may, in this case, be authorised following the above-mentioned procedure.

The surveillance data may be recorded and stored provided that:

  • the persons on the phone are informed:
    • that their conversation may be recorded;
    • of the reasons for this recording;
    • of the maximum time period the recording will be kept;
  • recorded communications are deleted once they have served their purpose, and at the latest on expiry of the legal period of appeal against the transaction;
  • the employer must clearly define the scope of this surveillance and inform his employees;
  • employees who are subject to surveillance measures must be given the possibility of private conversations (telephones not linked to recording systems or possibility of deactivating the recording).

Tracing telephone or electronic communications is strictly regulated.

Who to contact

1, avenue du Rock'n'Roll
4e étage
L-4361 - Esch-sur-Alzette
Luxembourg
Phone: (+352) 26 10 60-1
Fax: (+352) 26 10 60-29