Geolocation of company cars can be a useful tool for employers, but its use is strictly regulated.
Geolocation, sure... but under certain conditions
The law regulating private investigation prohibits the use of devices or their data to determine the locations or movements of the person in question, unless that person has given his or her prior consent. In our view, this does not prevent a geolocation system from being authorised, provided certain conditions set by the Belgian Data Protection Authority (hereinafter: “DPA”) are met.
The DPA has already stated on several occasions that geolocation data may be processed lawfully if specific conditions are met.
What are these conditions?
The installation of a geolocation system is authorised if:
1. The employer relies on a proper legal basis, generally the legitimate interest in the private sector and the public interest in the public sector. To this end, the purpose, necessity and balancing tests must be carried out:
- Purpose test: for instance, purposes such as monitoring work performance and hours worked may constitute legitimate grounds for the use of the geolocation system;
- Necessity test: in this respect, if monitoring work performance is a stated aim, the DPA considers continuous data recording to be disproportionate. he DPA emphasises that the system must be configured in such a way that it can be deactivated by employees outside of working hours. This means, in particular, that the employer must not have access to the data during such times;
- Balancing test: the geolocation system must have a limited impact on the individuals concerned.
2. The employer ensures transparency: staff must be sufficiently informed about the geolocation system, including its purposes, the legal basis, the types of personal data collected, and the retention periods for such data. This can be achieved by drafting a detailed geolocation policy incorporating all this information.
Furthermore, if the geolocation system concerns at least 10 employees from a specific category, an information and consultation process with the works council is required in companies that employed an average of at least 50 employees during the previous calendar year.
The use of a geolocation system that meets the above conditions may validly allow the employer to identify misconduct by an employee.
Marjolaine Dessard – Senior Associate Claeys & Engels
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