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Electronic communication tools used by the employees versus the employer’s monitoring measures

With the implementation of new digital media and the technological progress that is being made, interpersonal relationships are changing dramatically. These innovations are having an impact on the business organisations themselves, and they are even affecting labour relations between the company and its employees.

After the amendment made by the new Organic Law on Data Protection, the Workers Statute allows the employer to take the most suitable surveillance and monitoring measures to make sure that its employees are complying with their obligations and job duties. This is normally established by adding clauses in the work contracts signed by the employees. 

Indeed, through a new article 20 bis, the Workers Statute specifically states that workers can exercise the right to privacy when it comes to using the digital devices that are made available for them by the employer, as well as in terms of digital disconnection and privacy when it comes to the use of video surveillance and geolocation devices pursuant to the terms established in the existing personal data protection law and the guarantee of digital rights.

Furthermore, the Organic Law on Data Protection has one exclusive article on the right to privacy and the use of digital devices at work. However it must be pointed out that not only should the provisions established in the existing law on data protection be taken into consideration, but also the guarantees established by the courts, seeing as the employer’s power to monitor and control means that proof can be obtained that must respect the  requirements to not infringe upon the fundamental rights of the workers, seeing as everyone is entitled to respect in terms of their private and family life, their home and correspondence.    

Accordingly, as acknowledged by the European Court of Human Rights and the Supreme Court, it is essential that the lawfulness of these measures is reviewed (known as the Barbulescu II test) so that the employer can access the devices and, therefore use the evidence in court proceedings, for example concerning dismissal, without this being declared illegal:

  • Prior information: the employer informs the employee that it might take and implement monitoring and surveillance measures. The warning must be clear and given before the aforesaid measures are taken.
  • Scope: the scope of the monitoring measures taken by the employer and the degree of intrusion into the employee’s private life must be assessed.
  • Legitimacy: the employer must justify the surveillance of the electronic communication tools and where appropriate, accessing the content of such.
  • Invasive methods: it must be proved that the same objective cannot be obtained with methods that are less invasive.
  • Consequences: the consequences of the monitoring for the employee must be determined, as well as how the employer will use the results of these surveillance measures.
  • Employees’ guarantee: the workers are given the appropriate guarantees, particularly when the monitoring measures taken by the employer are intrusive.
  • It is therefore essential that there are clear regulations or documents written beforehand establishing the criteria for using electronic communication tools that are made available for employees, so that they know whether they can be used for personal and private purposes, where appropriate, as well as the possible consequences of non-compliance. This prior information will be used to vouch for the contractual good faith. 

However, it also has to be proved that other less invasive means of monitoring do not exist, and that the appropriate guarantees have been given to the employee, as well as information about the how the employer uses the surveillance measures that it wants to take. This requires labour-technological compliance so that the fulfilment of the applicable existing law and the limits established by the jurisprudence can be supervised. 

In this way the fulfilment of such points can be proved, on the premise that legal advice is given before these monitoring measures are taken.

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