Can the employer monitor its employees via car GPS tracking?

In what circumstances is GPS tracking of employees justified? We take a look at the recent decision of European Court of Human Rights concerning the dismissal of a worker on the basis of data collected from a GPS system installed on the company car.

GPS tracking of employees may make them feel like they are wearing a tracking anklet. This is why, in general, it should be avoided. But in what circumstances is it justified? Employee monitoring raises data protection and labour law implications in particular, and the latest decision by the European Court of Human Rights provides some guidance on car GPS tracking.

Employers can provide its employees with a company car and can even allow them to use it for private purposes. In such circumstances, it may become tempting for the employees to report less private and more work-related mileage. Like the old saying goes – give someone an inch and they will take a mile.

The recent decision by the European Court of Human Rights (ECtHR) in the case of the Florindo de Almeida Vasconcelos Gramaxo v Portugal dealt with such scenario, and it is quite interesting.

The facts

The case concerned the dismissal of a worker on the basis of data collected from a global positioning satellite (GPS) system installed on the vehicle which his employer had made available to him for the purposes of performing his duties as a pharmaceuticals salesman. Additionally, the worker was allowed to use the company car also for private purposes, however, such mileage had to be reported and the employer reimbursed for such use.

About a month after the installation of the GPS system, the worker first filed a complaint with the national data commissioner. It was noted that the GPS system was active 24 hours a day, 7 days a week, and the worker was not allowed to deactivate it. Nevertheless, the worker found a way to deactivate the GPS system. Upon finding this out, the employer installed a second GPS system on the company car.

Once the employer cross-checked information from the GPS systems and the worker’s reports, it found that the worker increased the mileage travelled for work purposes in order to dilute the mileage travelled for private purposes (i.e. 7,851 kilometres in a period of 7 months!). After a disciplinary procedure at the employer, the worker was dismissed.

The decision of the European Court of Human Rights

The worker considered that the processing of the geolocation data obtained from that system and his dismissal on the basis of those data had infringed his right to respect for his private life.

The ECtHR considered that the worker was aware of the GPS system installed in his car and that the employer used the GPS system to monitor mileage for private and work-related purposes and monitor the worker’s working hours. The latter point has already been dealt with by Portuguese courts who decided that the employer could not rely on GPS system data for termination on the grounds of violations of working hours.

In any case, the ECtHR noted that by retaining only the geolocation data relating to the distances travelled, the extent of intrusion into the worker’s private life was reduced to what was strictly necessary to achieve the legitimate aim pursued, namely, to monitor the company’s expenditure. This was a legitimate aim pursued by the employer, and thus, the ECtHR found no violations of the worker’s right to respect for his private life.

Take home point

The decision provides an interesting approach by the ECtHR to the question of whether GPS tracking company cars (also for private purposes) pursues a legitimate aim. The reasoning appears drastically different from the Information Commissioner’s decision from October 2022. We will have to ‘stay tuned’ to see if the Information Commissioner’s strong stance will be softened in any way due to the decision by the ECtHR.

Nevertheless, when considering installing GPS systems in company cars, the following points should be considered:

• Are the employees properly familiarised with the GPS system and the related processing of personal data?
• Is the GPS system systemic or only used in certain categories of vehicles?
• Can the GPS system be turned off when it is not necessary or when it is not used for work-related routes?
• Have the proper data protection mechanisms, procedures and retention periods been assessed and have the corresponding policies been implemented?

If you are interested in further recent cases on employee monitoring during the employment relationship, see also the post regarding the use of webcams.

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