Not only are there significant restrictions under employment law, the use of GPS systems in company vehicles is also subject to restrictions to be observed under data protection law. As regards the question of whether GPS systems in company vehicles are permitted under data protection law, case law from the Data Protection Authority already exists:
As early as in 2018, the data protection authority decided that consent to the use of GPS systems in company vehicles was not a suitable legal basis (DSBD213.658/0002-DSB/2018). An employee who was monitored by means of GPS in the company vehicle was awarded EUR 2,400.00 in damages (Supreme Court ruling 9 Ob A 120/19s).
Just recently, the DPA issued another decision on GPS and official vehicles, which has not yet become final and unappealable (2021-0.789.408 (D124.3940)). In summary: The use of GPS systems equipped with a deactivation function for private journeys is unlawful.
The decision was based on the following facts: A worker was employed as a customer service engineer. He was provided with a company vehicle which he was also allowed to use for private purposes. A GPS device activated via the ignition was installed in this company vehicle. Moreover, the vehicle had a switch to deactivate the GPS device for private journeys. The GPS device was intended to help the employer minimise the administrative effort for keeping track of the distances covered on business trips.
The Data Protection Authority came to the conclusion that the use of such a GPS device was neither necessary nor proportionate. Legitimate interests of the employer in simplifying administration and reducing the economic burden would not be a sufficient legal basis for data processing. This goal could also be achieved by more lenient means.
Thus, the following applies: When using GPS devices or GPS systems in company vehicles, special caution is required both in the context of pure business use and permitted private use. Restrictions apply under employment law and data protection law. Non-compliance may lead to legal proceedings, prohibition, fines and claims for damages.
The KWR employment law and data protection teams will be happy to advise you!