Under what conditions is performance monitoring by employers permissible? This question is answered quite differently in discussions about data protection law. Employees and works councils often argue that performance monitoring is inadmissible under data protection law. Employers, on the other hand, often assume the opposite and largely accept it. In some cases, measures intended to monitor performance are either deliberately or due to a lack of awareness somewhat euphemistically presented as merely “quality control of performance controlof performance control.”
Due to these ambiguities and different perspectives, the following will examine the admissibility of performance monitoring measures under data protection law.
Forms of performance monitoring of performance control
Performance monitoring can take various forms in an employment relationship. It will usually be clearly identifiable as such. However, even if the purpose of a measure is stat only to identify training needs, for example, austria business fax list it is ultimately about monitoring the performance or abilities of employees.
Pursuant to Section 26 (7) of the German Federal Data Protection Act (BDSG) , data processing outside of an IT system is also legally relevant. This can, for example, concern observations recorded by hand in logs.
Measures that do not relate to specific individuals, but rather to larger teams of seven or more people, or the workforce as a whole, are unproblematic under data protection law. In this case, team performance is considered anonymous data that is not subject to data protection law. However, it is important to consider whether information about a team’s performance might not constitute personal information related to the team leader and, in this respect, become relevant under data protection law.
No concrete legal regulation
There is no specific legal regulation on performance monitoring in German data protection law.
If one focuses solely on the GDPR, Article 6 (1) (b) GDPR only regulates data processing necessary for the performance of a contract to which the data subject is a party. The contract here is the employment contract, landing pages: which is better? and the data subject is the employee.
Section 26 of the BDSG , which applies via the opening clause of Article 88 GDPR, generally deals with data processing for the purposes of the employment relationship.
Permissible in principle
Measures to monitor performance in employment relationships can generally be designed in compliance with data protection regulations. They are not generally prohibit.
An employment contract is a contractual obligation. The employee is obligat to perform the work, email data and the employer is obligat to pay the agre remuneration. Within this contractual obligation, the employer generally has the right to verify that the work is being perform properly. Performance monitoring is therefore a form of data processing during the employment relationship and can be structur within the framework of Section 26, Paragraph 1, Sentence 1 of the Federal Data Protection Act (BDSG).
Maintaining necessity and proportionality
Even though performance monitoring measures are generally permissible, this is of course not unlimited. Section 26, Paragraph 1, Sentence. Federal Data Protection Act (BDSG) contains the aforementioned restrictions, according to which the measures must be necessary and proportionate.
Measures that lead to complete control or total surveillance of employees are generally consider clearly inadmissible. Employees should not be monitor at every step and in every way. This pressure to control would be incompatible with the right to informational self-determination.