Monitoring the worker’s computer, checking their professional cell phone, geolocating them when they use the company car, installing cameras or even hiring a detective are ways in which companies monitor their employees. But do they need a justification to do so? The courts are ruling on this matter. In the case of evidence obtained through a detective, the answer is no, according to a Supreme Court ruling. In this resolution, the High Court establishes that there is no requirement for relevant evidence, or a significant number of suspicions, for the company to hire a detective to monitor how an employee does his or her job. The determining factor for the evidence obtained by the detective to be lawful is, as Ana Godino, Sagardoy’s partner, clarifies, that it has been carried out in accordance with the principles of reasonableness, necessity, suitability and proportionality, as well as that the investigations have not been developed in the home of the investigated or in other reserved places (such as locker rooms or break rooms).
In an employment relationship, employer and employee have reciprocal rights and duties. While the worker has the duty to perform the functions for which he has been hired, the employer has the right to monitor that he fulfills his job obligations. However, this power is limited by the fundamental rights of workers, in particular by two of them: privacy and the secrecy of communications. To overcome these limits in monitoring employees’ use of digital devices, Paz de la Iglesia, partner at DLA Piper, specifies, it is essential that the company has previously established its usage criteria. Thus, for example, in a sentence of Superior Court of Justice (TSJ) of Madrid It was declared that the monitoring of the employee’s computer had been legitimate because he visited websites that had nothing to do with his work, which was conduct prohibited by the company and that he was reminded with a message on the screen each time he started session. The Madrid TSJ also reached the same conclusion regarding a case in which the boss had reviewed the WhatsApp messages of his subordinate. The court ruled that the worker’s privacy had not been violated because the contract specified that the telephone was for professional use, and only messages with clients had been reviewed.
In any case, adds De la Iglesia, to assess whether the means chosen to control compliance with labor obligations is lawful, it is always necessary to overcome the so-called “triple trial.” Firstly, the suitability of the measure, which must be the most appropriate to achieve the proposed objective. Secondly, the intervention has to be necessary, in the sense that there is no other more moderate measure. And, finally, proportionality, since the method must be balanced and proportional to the intended purpose.
Privacy expectations
Regarding this last point, Miguel Arberas, partner at Abdón Pedrajas Littler, specifies, the proportionality of the interference will depend on the expectations of privacy granted to the worker. “In relation to mail or computer, if the use of these is permitted tools for personal purposesthe worker’s expectation that their privacy will be respected will be greater, and the control of these tools will be much more limited,” he explains.
Another condition for monitoring by the company to be valid is that the worker has been previously informed of the possibility of supervision. “Advance knowledge on the part of the worker (deductible or explicit) constitutes a necessary requirement for the legitimation of the acts of interference exercised by the employer under his power of power and business management,” highlights Ana Godino. With this argument, the TSJ of Castilla y León declared the dismissal of the seller admissible because he had falsified customer visit data. The employer discovered the deception due to the geolocation implanted in the company vehicle. A system that the court considered lawful since the employee had been informed of its installation and the reasons for which it was installed. Furthermore, the control was only carried out during the working day.
However, as Arberas points out, this prior information will not be required in the case of specific controls. “Although some Supreme Court rulings maintain the obligation to inform in advance in order to be able to video-surveillance, that doctrine has been modulating, once again taking precedence over the judgment of proportionality,” he points out. Thus, when notifying the employee could make the investigation useless, the company can refrain from providing that information, although always guaranteeing the least intrusion into their privacy.
A different issue is for the company to supervise what the employee does outside of working hours. In this context, the employer’s power of control is much more restricted, but he can exercise it in certain cases. “Although outside the workplace the employer’s supervisory power is relaxed, it should be noted that the worker’s actions are not completely free of control,” says Ana Godino. Specifically, the company can control and sanction the employee for public actions that may seriously affect them. This would include acts outside the workplace, such as inappropriate behavior at events organized by the company or those shared by the worker on their social networks.
Social networks
The dissemination of messages, images or videos through social networks can have disciplinary consequences in the workplace if the employee’s profile is open. There will then be no violation of the worker’s privacy, but that does not mean that any publication can be grounds for dismissal. The dismissal, explains Ana Godino, Sagardoy’s partner, will be appropriate if what was expressed on social networks is not protected by freedom of expression. For example, if insults are made against colleagues or the company, insulting statements regarding the company or that compromise its public image, even when inappropriate comments or images outside the company are shared, but identifying themselves as a worker of the company and thus damaging their reputation.
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