Thursday, November 1, 2007


Internal investigations at the workplace 

by Constantinos Kyriakides
Kyriakides Georgopoulos and Daniolos Issaias Law Firm

Greek Civil Code (art. 662) provides for the employer’s general obligation of welfare of the employees, i.e. the obligation to keep the peace and order at the workplace by protecting at the same time the physical integrity and respecting the personality of the employees. 

Several situations can disrupt said peace and order, such as violations of work rules, workplace theft, unfair competition etc. The employer wishes to obtain knowledge of these situations promptly and to initiate internal investigations in order to remedy them. The limits of these investigations differ on a case to case basis, however, the managerial right must always be exercised without any abuse.

An overview of the Greek legislation, legal theory and case law, shows that the employer cannot unilaterally and discretionally proceed to internal investigations, i.e. any eventual investigation should be initiated due to a serious cause, and the employee must give his/her prior consent, such as in case the employee was duly informed about this possibility at the time of recruitment. In the absence of the above conditions/prerequisites, the employer is obliged to call in the public authorities.

Furthermore, the employer must be cautious not to violate any rules of personal data. One of the most frequent examples are those relating to background checks (medical, criminal records etc.) when a person is recruited, video surveillance of the workplace, monitoring of phone calls, emails as well as visit to the website. Greek legislation as well as the Data Protection Authority (DPA) set as primary condition in the above mentioned cases the respect to the principles of proportionality and legality and the free and clear consent of the employee. Following the above, the result is that, for example, copies of criminal records can be requested from the employee at recruitment if the job position justifies same, i.e. the employer is a bank and the job position is the one of a cashier. Same applies in cases of monitoring phone calls, emails, web pages visited etc. which is allowed only when the employee has consented hereto and when it is absolutely necessary for the organization and the monitoring of completion of a specific task. The DPA has ruled that in the above mentioned case, if the employer reserves its right for the monitoring, then he/she must provide room in the server or in the telephone center where employees may communicate personal information, to which he/she has no access. The general principle is that the employee has the right to privacy, which is protected by the Greek Constitution.

Last but not least, even if the employer illegally proceeds to such internal investigations, the results of same usually cannot be used in court, since they are considered as illegal proof. On the contrary, the employee will have a claim of tort against the employer (mainly moral damage), and the DPA may also proceed to the imposition of administrative fines.