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Article 10 ECHR (freedom of expression) applies in the context of labour relations, including where these are governed by private law; the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals.[1] Article 11 ECHR (freedom of assembly and association) protects both workers and trade unions. An employee or worker should be free to join or not join a trade union without being sanctioned or subject to disincentives.[2] In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, States enjoy a wide margin of appreciation as to how trade union freedom and protection of the occupational interests of union members may be secured.[3]

The ESC protects freedom of association as the right to organise under Article 5, guaranteeing workers the right to form and join trade unions and employers’ organisations without prior authorisation.[4] Article 28 ESC complements these protections by safeguarding trade union independence and ensuring protection for workers’ representatives,[5] including protection from dismissal or any retaliatory treatment[6] such as denial of benefits, training, promotions, or discriminatory layoffs.[7]

AI-driven workplace surveillance may have adverse consequences for free expression and unionisation. The misuse of AI system-based surveillance can present threats to employees’ freedom of expression and their freedom of association by potentially having a chilling effect on their rights to hold opinions, receive and impart information and ideas and organise, set up workers’ meetings, and communicate confidentially. Monitoring communications, interactions, and movements can help employers suppress trade union activities by hindering meetings or discouraging employees from speaking out. A lack of protection for employees from discrimination by the employer on the grounds of their trade union activities could have discourage other persons from joining that trade union, which could in turn lead to its disappearance.[8]

To prevent the adverse impacts of AI system-driven workplace surveillance, States should enforce strict safeguards ensuring transparency, accountability, and compliance with Articles 10 and 11 ECHR and Articles 5 and 28 ESC. Employers must justify surveillance measures as necessary and proportionate, with clear limits to prevent anti-union misuse.

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