The (i)legality of the use of GPS devices in labour relations
Contrary to the ruling jurisprudence, the Guimarães Court of Appeal has admitted the use of data collected by a GPS system in the context of a disciplinary procedure with dismissal intent.
It should be noted that the major innovation brought by the court’s ruling is the concept of “professional performance”.
In this case, the data obtained through the GPS system installed in the vehicle allocated to the Employee was used to initiate a disciplinary procedure that led to the employee’s dismissal with just cause. Discontented with the court’s decision, the employee judicially challenged his dismissal up-to the last admissible appeal – but always unsuccessfully.
Specifically, the Guimarães Appeal Court considered that checking the actually mileage recorded by the GPS system against the mileage reported by the employee, for expenses reimbursement purposes, does not constitute professional performance assessment and therefore the data obtained was lawful and could be used as evidence.
Additionally, the Guimarães Court of Appeal considered that: “The concept of professional performance does not dispense the concatenation with the functions that are committed to the employee and relates to the way in which one carries out such functions, that is, where, how and when he/she performs those functions.”
As a last resource, the employee appealed from the referred sentence to the European Court of Human Rights, that confirmed on 13 December 2022 that the Portuguese State had not failed in its positive obligation to protect the privacy of the appellant’s private life, confirming the Judgment of the Guimarães Court of Appeal.
In view of the above, we conclude that the GPS data cannot be used for the purposes of controlling “professional performance”, but such concept is limited to the way in which the employee carries out his/her functions, that is, where, how and when, whereas in regarding other aspects of the employment relationship, the employer may use the data obtained through the GPS system.
Guimarães Appeal Judgment No. 20/14.7T8VRL.G1 of March 3, 2016