Digital technologies have radically changed the way companies organize work. Employers are increasingly using video surveillance, email monitoring, and corporate email analysis to ensure discipline, protect information, and improve work efficiency. At the same time, such tools create new legal challenges, as there is a fine line between business interests and an employee's right to privacy. Modern case law and the preparation of a new Labor Code are gradually shaping the rules that companies should follow today. More details below.
Digital control as a new reality of modern business
In the workplace, employee monitoring is rapidly moving to the digital realm. Video surveillance cameras, email monitoring, and analysis of corporate messengers are increasingly becoming part of a company's management system. Businesses view these tools not only as a way to check employee discipline, but also as a mechanism to protect commercial information, prevent abuse, and ensure security.
At the same time, the use of such control tools is always in the balance between the employer's right to organize the work process and the employee's right to respect for private life. That is why the issue of the admissibility of surveillance and control of employee communication is becoming one of the most relevant in modern labor law.
Despite the fact that the new Labor Code of Ukraine is only being prepared for adoption, judicial practice is already actively shaping approaches to assessing such situations. The draft of the new Labor Code (Articles 35, 36) provides for the regulation of employee monitoring mechanisms, but the Supreme Court is already defining key guidelines for employers and employees in its decisions.
Employee correspondence as evidence in court
Corporate communication is increasingly happening through digital channels: email, internal chats or instant messengers. In the event of conflicts, these messages can become important evidence in litigation.
Judicial practice confirms that emails and messages in messengers can be recognized as full-fledged electronic evidence. The Supreme Court of Ukraine (hereinafter - the Supreme Court) draws attention to the fact that for their use in court it is necessary to establish the authors of the messages and the content of the correspondence. This approach is formulated, in particular, in the resolution of the Supreme Court in case No. 916/3027/21 dated June 21, 2023.
At the same time, the courts also apply the so-called “reply letter” doctrine. If it is proven that a certain letter was sent to a specific person, the response to it is considered authentic even without additional confirmation. The logic of the court is that an outsider could hardly know the details of the previous correspondence. This approach is enshrined in the resolution of the Supreme Court of Ukraine in case No. 910/5408/21 dated August 3, 2022.
All these facts indicate that corporate correspondence is gradually becoming a legally significant element of the evidentiary base in labor and commercial disputes.
Video surveillance in the workplace: what is permitted by the law
Another common form of control is the use of video surveillance cameras. Although direct regulation of this issue is expected only after the adoption of the new Labor Code, the courts have already formed basic principles for assessing such situations.
The key criterion is the presence of a legitimate purpose. Video surveillance is permissible when it is aimed at ensuring security, protecting the employer's property or monitoring the performance of work duties. The Supreme Court, in its resolution of April 13, 2023 in case No. 460/1141/21, emphasized that the very fact of video surveillance is not an automatic violation of the rights of an employee if it is justified by security interests or the need to prevent violations.
At the same time, the legislation establishes important restrictions. According to Art. 307 of the Civil Code of Ukraine, filming a person without their consent is inadmissible, with the exception of open recording in public places. In the context of employment relations, this means that employees must be informed about the presence of cameras in the workplace.
Video recordings obtained under these conditions may be used as evidence in court. The case law of the European Court of Human Rights confirms that video recordings may be admissible evidence in cases involving disciplinary violations or theft.
The line between control and privacy invasion
The most difficult aspect of digital surveillance is drawing the line between legitimate control and intrusion into an employee’s privacy. Case law is based on the principle of good faith on both sides of the employment relationship.
An employer has the right to control the work process, but such control must be justified and proportionate. The use of covert surveillance or systematic collection of information about an employee without a clear purpose may be considered an abuse of the right.
The legislator is particularly cautious about the issue of e-mail control. The draft Labor Code defines monitoring of corporate communication as a last resort, which can be used only when it is impossible to verify the performance of duties in other ways. Therefore, an employer cannot read employees' correspondence out of purely formal curiosity. Any interference with communication must be justified, proportionate, and related to production necessity.
Why transparent control rules are beneficial to both parties
The practice of labor disputes demonstrates that the greatest risks for business arise when control rules are not defined or applied informally. Without proper notification to employees, video recordings or screenshots of correspondence may be recognized by the court as inadmissible evidence.
That is why modern companies are increasingly enshrining the procedure for using video surveillance and monitoring corporate communications in employment contracts or internal labor regulations. This approach allows you to create clear rules of the game for all participants in labor relations. For employees, this means a clear understanding of what control tools the employer can use. For businesses, it is an opportunity to use digital HR management technologies without the risk of legal claims.
