The employer is bound by a number of duties to his employees. The employer must protect and refrain from violating the employee's personality and privacy. The employee's private sphere includes his family life, his state of health and his political or religious opinions.
Furthermore, the employer may only process the employee's personal data if it is relevant to the job or if it is necessary for the performance of the employment contract. The situation is particularly delicate when such data concerns the intimate private sphere of the employee, such as his or her state of health or desire to have children.
During a job interview, the employer often wants to ensure that the candidate is in good health or that the candidate is not pregnant. In the case of a company with an ideal goal, such as a religious association or a union, it is important for the employer to verify that the employee corresponds to its values and shares its political or religious convictions.
For some positions, the employer asks for the employee's criminal record, in order to verify if the employee is honest.
All of this information is personal data, sometimes sensitive, which is part of the employee's private sphere. Questions from the employer about this information are only possible if they are directly related to the job in question. If this is not the case, the employee will have the right to lie and the employer will not be able to take sanctions against him/her because of this lie.
Love at work
Love and work rarely go together. Employers often fear that there will be tension within the company when a romantic relationship turns sour or there are accusations of sexual harassment.
The employer is tempted to include a provision in the company rules prohibiting romantic relationships between colleagues. The employer may be tempted to fire one or the other of the lovers in order to avoid these problems.
However, romantic relationships are an integral part of the employee's personality and private sphere. Dismissal for this reason is likely to be considered wrongful, unless the relationship between colleagues causes serious problems for the company.
Recording in the Workplace
There are many reasons why an employee might make video or audio recordings in the workplace. The employee is tempted to record his or her evaluation meeting in order to gather evidence in case of a dispute with his or her employer or to catch a co-worker in the act of committing an offense.
When this recording is made without the knowledge of the interviewers, the employee is violating their privacy. Such behavior may be subject to criminal law. What about an employee who records his/her supervisor without his/her knowledge because he/she fears that he/she is sexually harassing him/her?
Social networks are part of the employee's private sphere. The latter benefits from the freedom of expression and can freely express and spread his/her opinion.
However, this freedom of expression is limited by the labor law and the employee's duties towards his/her employer. Strong criticism of the employer or of the products sold by the company, revelations about a new prototype or about the company's turnover are unacceptable behavior. The employer must react quickly if he/she wants to preserve the company's image.
An employee with a flu who is caught at a nightclub... An employee with back problems who repairs the roof of his/her house... An employee who is unable to work immediately after being dismissed or who submits a retroactive medical certificate... There are many different situations in which the employer may question the validity of the medical certificate.
In such a case, the employer may call upon a medical consultant to verify the validity of the medical certificate. However, the medical consultant will not be able to provide the employer with just any information. Indeed, a lot of information about the employee's state of health is part of his/her private sphere and is covered by medical secrecy.
Religion in the workplace
An employee's religious beliefs are part of his or her personality and private sphere. The employer is obliged to respect and protect them. However, this religious freedom is limited by the employee's obligations to perform his or her job properly.
Dismissal may be considered when the constraints imposed by the employee's religion are detrimental to the proper functioning of the company, in particular when the employee has to pray several times a day or when the wearing of the veil seriously harms the company's relations with its customers. However, the employer must take precautions because the dismissal may be qualified as wrongful.
During the employment relationship, the employer is required to collect a great deal of personal information about the employee, in particular about his or her state of health, absences or family situation. When faced with a request for a reference from a former employee, the employer is obliged to provide all useful information to a future employer. However, the former employer cannot go too far, at the risk of infringing on the employee's private sphere.
In times of crisis, employers are tempted to save money by asking employees to use their private phone for business purposes. This can be problematic when the employer needs to determine what the employee's business expenses are or if the employer wants to reclaim the number that customers have called for years at the end of the employment relationship. The employer will be hard pressed to manage this situation without invading the employee's privacy.
In the digital age, the employee is often reachable at any time and any place by his/her employer. A situation to be avoided as it may infringe on the employee's privacy.