Restrictions in the Workplace
Can the employer monitor, access, review the employee’s electronic communications?
According to the Portuguese law, the employer can establish rules for the use of means of communication, especially emails, but is prohibited from accessing the content of personal messages that the employee receives or sends.
Therefore, the employer must – before starting the monitoring process – inform the employee about the conditions of use of the company’s means for private purposes and how they are monitored (forms and methodologies adopted), about the existence of the associated data processing, its purposes, the data processed and their retention period, as well as about the degree of tolerance allowed and the consequences of misuse or improper use of the means of communication made available to them.
Regarding the monitoring process, and according to the Portuguese Data Protection Commission (“Comissão Nacional de Proteção de Dados”), the employer should favour generic control methodologies, avoiding individualized consultation of personal data whenever possible.
The employer should not carry out permanent and systematic monitoring of employees’ emails. Checks and access should be occasional and targeted at the areas and activities that present the greatest “risk” to the company and follow the criteria provided by law in that respect.