In a recent judgment the Swiss Federal Supreme Court ruled that it is inadmissible for an employer to use spy- ware to monitor employees. Evidence obtained in this way may not be used.
The case concerned the commander of a regional civil defense organization in the canton of Ticino. He was suspected of making extensive use of the Internet for private purposes during working hours. The employer therefore secretly monitored the use of the man’s workplace computer for three months using spyware. On the basis of the usage data thus obtained, it was possible to ascertain that the employee was spending a significant proportion of his working time on private matters. This led to his summary dismissal.
This action by the employer was deemed by the Federal Court to be inadmissible and the summary dismissal to be unjustified. The court considered that the employer breached employee protection laws by using spyware. These prohibit the use of surveillance and control systems designed to monitor the behavior of employees at the workplace.
Surveillance systems may be used for other purposes, but must be configured so that they interfere as little as possible with employees. For example, if room surveillance is necessary for security reasons, the field of view must be set so that, where possible, employees, e.g., working at a checkout or counter, are not recorded.
The employer’s action also contravened the requirement for proportionality. Even though it is acknowledged that the employer has a legitimate interest in monitoring work output and preventing the misuse of working time for private activities, the court considers that this can be achieved by less radical means than spyware. One possible method is to block access to certain websites. It is also permissible to log Internet use and to analyze these records with reference to individuals if there are specific reasons to suspect misuse. The Federal Data Protection and Information Commissioner has issued guidelines for this purpose, to which reference was made by the court.