Were you among those who watched the series Življenje Tomaža Kajzerja on RTVSLO on Sunday 21 January 2024 and were intrigued by the use of a polygraph? Is polygraph testing allowed and regulated also in other procedures and under what conditions?
The issue of polygraph testing has recently addressed by the Supreme Court, not in a criminal case, but in a civil or more precisely labour law case.
The facts of the case
The defendant (the employer) received an anonymous letter about irregularities in the work of its human resources department, threatening to make the irregularities public if they were not corrected. In order to establish who was responsible for the data leaks and to prevent them, it carried out polygraph tests on female employees, including the applicants. In the court proceedings against their employer, the applicants then claimed damages (among other things) for this and other forms of bullying.
Polygraph in an employment relationship
The Court of First Instance substantiated the unlawfulness of the defendant’s, employer’s, conduct on the ground that polygraph testing is based on the subject’s automatic nervous system responses, which are not under the control of the subject’s will, which constitutes an excessive interference with the employee’s personality and his rights, since the employee gives prior consent to involuntary bodily responses over which the he or she has no control. It was considered that the applicants had doubts about consenting to the testing because of feelings of indirect coercion, so that if they refused to consent, they would appear to be the “perpetrators”.
Constitutional and legal rights
In their assessment, the Courts of First and Second Instance took into account Article 34 of the Constitution, according to which everyone has the right to personal dignity and security, and Article 35 of the Constitution, which guarantees the inviolability of a person’s physical and mental integrity, his privacy and his personality rights. They also referred to Articles 46 and 47 of the Employment Relationship Act, according to which the employer must protect and respect the worker’s personality and respect and protect the worker’s privacy, dignity and personal data, and not the other way around. The Courts took the view that the polygraph testing did not constitute the exercise of the rights under Article 48 of the Employment Relationship Act.
Polygraph at the police
In Slovene legislation, the use of the polygraph is provided for in connection with the procedure for detecting criminal offenders and is regulated by the Police Tasks and Powers Act, more specifically by Article 48, and is carried out under conditions and in a manner regulated in more detail by regulations. Thus, in the present case, the High Court clarified that polygraph testing is within police powers which the employer does not have, and that the testing was carried out without any legal basis and solely in the interest of the employer.
Regulation of polygraph testing
The possibility of polygraph testing is not regulated by any other laws, not even by the Private Detective Service Act, as a detective may not exercise entitlements for which the police, courts and other judicial authorities are appointed or authorised by law. This applies irrespective of the specific and actual qualifications of the person who carries out the polygraph test.
It is true that no legal act expressly prohibits an employer from using a polygraph in the employment relationship, but that does not mean that the use of a polygraph was permissible in the applicants’ particular case. Neither did Article 48 of the Employment Relationship Act constitute a legal basis for such testing, nor did the Court find any reason to regard the applicants’ conduct as consent under Article 140 of the Obligations Code, which may exclude the unlawfulness of the conduct and the damage thereof. Consent is effective only if the general prerequisites for its validity, which include free will, are met.
Consent to polygraph testing
In the present case, consent to polygraphed testing constitutes, by the manner in which it is carried out, an invasive interference with human integrity and, consequently, with the inviolability of mental integrity, privacy and dignity. It must be borne in mind that the applicants’ consent was given in the context of an employment relationship, a relationship which is also defined by the subordinate position of the employee in relation to the employer, so such consent must be assessed with rigour.
Use of a polygraph is not permitted
Consequently, the Supreme Court held that since the employer had no express legal basis for the polygraph test and since the applicants’ consent to the polygraph test was not free, as they were in a subordinate position vis-à-vis the employer as employees, the use of the polygraph was impermissible.
The carrying out of polygraph testing by the employer, despite the prior written consent of the employee, therefore, constitutes unlawful conduct on the part of the employer in the circumstances of the present case.
Written by: Manca Trček