Mystery shopper and the law

In the Labor Code regulations, one can search in vain for provisions clarifying the definition of a mystery shopper. There is an ongoing dispute among labor law experts that seems to have no end. The problem lies in defining not only the institution of the mystery shopper itself, but also the role it plays. According to many, a business using a mystery shopper should inform its employees, as this would be a form of monitoring. However, the mystery shopper does not always record a certain scenario. What then? Is a mystery shopper legal?

Is a mystery shopper legal?

The easiest answer - a mystery shopper is legal if he doesn't break the law. And this is indeed the case. The institution of mystery shopper itself is not prohibited by Polish law. More, it is not present at all in both the Labor Code and Personal Data Protection provisions. It is often the case that the scenario resulting from the order is, from the perspective of the law, safe, it does not force things on the mystery shopper that may be questionable to experts. Playing out the scene according to the guidelines and on carrying the observations on the appropriate sheet and drawing up a report seem to raise no doubts. Instead, it allows the entrepreneur to collect a lot of interesting data about the company's procedures. The study through a mystery shopper is often the subject of analysis to improve the company's processes and the behavior of employees towards the customer.

Can a mystery shopper record a conversation?

This is where the stairs begin. Although, as we mentioned, there is no concept of a "mystery shopper" in Polish law, the essence of its functioning is well known. In addition to just playing out scenarios and making reports, a mystery client often records everything with the appropriate equipment. Of course, such a recording cannot be made public without the consent of those involved. However, by design, the client often does not even want to make such a recording public, even if it was made. The purpose is different - it is often to check procedures. From a legal perspective, it seems that employees should be informed that monitoring is being carried out at a given point. Such information seems to fulfill this requirement. If the employee has been informed of the continuous monitoring of the workplace, he should also not be surprised by such a form of control as the use of a "mystery shopper."

Except in very special cases, such as facilities of strategic importance, consent to recording is not required. Consent can only be given for the publication of the created recording itself, and it is only from this angle that any doubts about consent to recording by a mystery clientshould be considered.  We omit a recording that may show anyone's image as a so-called "detail of a larger whole," because then, under the Press Law, there are also grounds for not needing to seek permission for publication. These considerations are pointless, however, because even if the mystery client is tasked with recording the entire scenario, the resulting recording is for internal analysis only, not for publication.

RODO and the mystery shopper

Considering all provisions of Polish law on data protection, it seems clear that if employees are informed of the monitoring being carried out, they should have no objections to it. There is no justification for the provisions of the RODO in this case, since the image of the people who appear on any recordings is used only in internal proceedings. It is a different matter if the entrepreneur does not inform employees that there is monitoring in the company. The lack of such information can be the basis for possible claims by employees of abuse by the employer. The mystery shopper is no exception.