Are employers allowed under EU law to use brain data as part of the growing trend of workplace surveillance? And if so, how should this be regulated to ensure full respect of labour rights? What role does the workers’ consent play in this context? Through the examination of the legal protection offered to mental data by the GDPR and the potential of the opening clause enshrined in its Article 88 as a tool to protect workers from neurosurveillance, this paper aims to answer some of these questions. Ultimately, through the combined analysis of scholarly writings, data protection and labour legislation adopted in EU Member States and the relevant ECtHR and CJUE case-law, this work provides the basis for a broader discussion on whether the legal safeguards currently in force are sufficient to grant protection against the employers accessing workers’ mental states.
Keywords: workplace surveillance; GDPR; right to privacy, freedom of thought and expression; wearable neurotechnology