The use of new technologies allows for greater effectiveness in completing work. Requirements for the valid control of the company's computer resources.
It is increasingly common for our clients to ask us how to control the use of email, instant messaging, websites, etc. It is legally imperative to bear in mind that such controls must also comply with the data protection law (LOPD) and, furthermore, not violate the fundamental rights of workers.
Also read the article Can I control my employees' personal use of email and the internet?
The implementation of technology in companies is leading to a revolution in labor relations. Telematics and/or computer systems, on the one hand, increase efficiency, productivity, and simplify work processes, and on the other hand, store a vast amount of interconnected data, forming an enormous information network that encompasses both work-related and personal aspects.
Also read the article What legal validity do WhatsApp messages have in the workplace?
The delicate balance between an employer's managerial authority to control employee data and data belonging to other entities or individuals, such as clients or suppliers, and the fundamental rights of workers has resulted in a wide variety of case law , sometimes contradictory. For this reason, I find it interesting to mention the European Court of Human Rights, or Strasbourg Court (ECHR), which is the highest judicial authority for guaranteeing human rights and fundamental freedoms throughout Europe. It is an international court before which any person who believes they have been the victim of a violation of their rights recognized by the Convention for the Protection of Human Rights and Fundamental Freedoms or any of its Additional Protocols, while legally under the jurisdiction of a member state of the Council of Europe, and who has unsuccessfully exhausted all available legal remedies in that state, may file a claim.
An example of this is a recent judgment by the ECHR which considered that it is a violation of the right to privacy and secrecy of communications to monitor messages sent by a worker through company means and to access their content, if the worker has not been previously informed of this possibility, even if there were rules in the company that prohibit their use for personal purposes.
Judgment of the ECHR Grand Chamber 5-9-17, case Barbulescu v Romania, req 61496/08.
A Romanian engineer, the sales manager of a company, was fired for using a Yahoo Messenger . He had created the account, at the employer's instruction, to answer customer questions. The dismissal occurred after the company monitored the employee's computer and discovered he was having private conversations during work hours. The employer had established strict rules for the use of computers and IT equipment that prohibited employees from using them for personal purposes. However, these rules made no mention of the possibility that the employer could monitor employee communications.
The worker, whose dismissal was deemed lawful in Romania and who had already appealed to the ECHR and had his claim dismissed, requests a review of the judgment before the Grand Chamber, which considers that there is indeed a violation of the right to privacy based on the following arguments:
- The Romanian courts have failed to strike a fair balance between the worker's right to respect for their private life and the employer's right to take the necessary measures to ensure the proper functioning of the company. In no case was it verified whether the worker had been previously warned of the possibility of the employer taking surveillance measures, nor of the nature of those measures. The courts merely noted that the company had distributed a notice to all employees in which, after announcing the dismissal of another employee for using company resources for personal purposes, it stated that it was obliged to verify and monitor the work of its employees.
- For the company's notice to be considered valid , it must precede the start of the surveillance activity, especially if it involves accessing the content of communications. In this case, the employee was not informed in advance of either the extent or nature of the surveillance carried out by the employer, nor of the possibility of accessing the content of the messages.
- The Romanian courts also failed to explain the specific reasons justifying the adoption of the surveillance measures, nor did they assess whether the company could have adopted less intrusive measures regarding the worker's private life and correspondence, or whether access to the content of communications was done behind the worker's back.
Finally, it should be noted that the ECHR has considered the mere recognition of the existence of the violation of his right to privacy to be sufficient satisfaction for the worker and does not establish any other economic compensation.
Ultimately, the company must inform its employees about the control systems it will use, and the employee must be aware of how and in what way the use of the technologies they will use in their job will be controlled in order to avoid possible tensions between both aspects.
Conclusion
In conclusion, to best defend against any disagreements that may arise between the company and the employee during and/or at the end of the employment relationship, it is best to document them in writing at the start of employment by adding clauses to the employment contract. At Ambit Assessor, we strive to tailor these additional clauses to the client's specific needs, while respecting the employee's right to privacy and due consideration, as established in Article 4 of the Workers' Statute.
Also read the article Prepare to face major changes in Data Protection regulations
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She studied Accounting and Taxation at the AELLA study center and Labor Relations at the Afige business school, later specializing in Payroll Management at the Barcelona College of Social Graduates. Her professional activity focuses on business consulting, in which she has extensive experience. In November 2007, she joined the Àmbit Assessor team, where she currently works as a Labor Consultant.
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