The employer's ability to control the means of production affects the fundamental rights of workers
The rapid incorporation of new technologies into labor relations has generated countless problems for labor legislation that has become obsolete, since despite its multiple reforms, it has not been able to adapt to the new social reality.
In the absence of specific legislation and the silence, in many cases, of collective agreements, it is the courts that, by resolving specific cases, establish the criteria that should govern in this matter.
In this regard, it is important to note that the employer owns the means of production and, therefore, has full authority to decide how employees use them, and thus has the power to penalize any breaches. However, when employer control is exercised over certain technological means, such as communications via corporate email or personal internet use , a problem arises: such monitoring by the employer directly affects fundamental employee rights, specifically the right to privacy and the right to confidentiality of communications.
Case law that establishes the criteria governing the matter
The most relevant ruling on the matter is that issued by the Fourth Chamber of the Supreme Court on September 26, 2007, followed by subsequent rulings of the same chamber and endorsed by the Constitutional Court, establishing that if the company totally prohibits the use of these technologies for private purposes, whether within or outside working hours, no fundamental right can be considered violated because if there is no right to use the computer for personal purposes, there will also be no right to do so under conditions that require respect for privacy.
What the resolution essentially says is that if the company does not allow a situation of tolerance for personal use, there is no reasonable expectation of privacy because if the personal use is unlawful, the employer cannot be required to tolerate it and also refrain from monitoring it.
Conclusion
Therefore, in light of the foregoing, it seems clear that the Supreme Court's doctrine is geared towards supporting the use of codes of conduct in regulating this issue, so the simplest way for the employer is to proceed with regulating this matter, reliably communicating to the company's employees the prohibition of personal use of computers and internet access, as well as the control mechanisms that will be carried out in this regard.
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A graduate in Law from the University of Barcelona, she also completed a Master's degree specializing in Labor Law and Social Security at the Barcelona Bar Association. She began her professional career as an intern while studying and later joined the Navarro Law Firm as an employment lawyer, advising companies nationwide on labor law matters and representing them before the Labor Courts, the Labor Inspectorate, in conciliation proceedings, etc. In February 2017, she joined Àmbit Jurídic i Econòmic as a professional partner after extensive experience as an employment lawyer.
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