Workplace monitoring and employee privacy: Where are the limits?

by Laura Mendes Tique
A recent case in Spain has reignited the debate on how far employers may go when monitoring employees. The case concerned a supermarket chain employee who benefited from a reduced working schedule for family care purposes, and whose activities were monitored by a private detective engaged by the employer. Beyond its specific facts, the case raises a broader question: where does legitimate supervision end and unlawful intrusion begin?

Portuguese law recognises the employer's managerial powers to organise and direct work, but it also sets clear limits designed to protect employees' privacy and personal data.

One of the most significant restrictions is set out in Article 20 of the Portuguese Labour Code, which prohibits the use of technological surveillance tools for the purpose of monitoring employees' performance or professional activity. Video surveillance, geolocation systems, and other monitoring technologies cannot therefore be used as instruments for assessing productivity or disciplinary compliance.

Video surveillance may be used for security and asset-protection purposes, but not to continuously monitor employees' work. Additionally, cameras cannot cover areas reserved exclusively for employees, such as changing rooms, restrooms, or staff dining areas.

Similar limits apply to electronic communications. While employers may establish rules governing the use of company IT systems and corporate email accounts, Article 22 of the Labour Code prohibits access to the content of employees' personal messages and private accounts.

Geolocation also remains heavily restricted. Continuous tracking cannot be used to monitor performance or attendance, and may only be justified for specific legitimate purposes (e.g. protection of high-value or hazardous assets). The Portuguese Data Protection Authority has adopted a particularly restrictive approach regarding the geolocation of devices assigned to employees.

The Spanish case is a reminder that the key question is not whether employers may monitor employees, but where the limits lie. Under Portuguese law, monitoring measures are lawful only to the extent that they pursue a legitimate purpose and comply with the restrictions imposed by labour and data protection legislation. Ultimately, employers must balance their interest in overseeing the employment relationship against employees' rights to privacy, dignity, and the protection of their personal data.

Laura Mendes Tique is a principal associate at GPA Law Firm, and has been a member of the Portuguese Bar Association since 2017. An expert in labour law and private clients & wealth management, she provides tailored legal advice and effective solutions aligned with clients' business and personal objectives.

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