Yes, the corporate devices of the working personnel can be monitored but with certain nuances. The Workers' Statute (article 20.3) recognizes the employer the power to establish labor controls. However, the control measures must be proportional and respect in any case the dignity and rights of the employee.
Therefore, the regulations require the employer to establish criteria for the use of devices in the workplace. For example, by drawing up a policy on the use of devices that includes, among others, the following aspects: authorized access to devices, permitted purposes (exclusively professional or also personal use), periodicity, manual or automated access, etc.
When monitoring devices, the following must be communicated
This policy shall be implemented and communicated to the working personnel of the organization and evidence shall be collected to prove that this information has been effectively provided (for example, by signing the document).
In any case, it is essential that the organization has informed the worker about the control that is carried out through monitoring.
In this sense, the judgment of the High Court of Justice of the Basque Country declaring the nullity of a sanction against a worker and imposing a compensation of 7,501 euros for violation of fundamental rights is enlightening.
Most relevant issues of this ruling:
Key Facts:
- The plaintiff worked for a company, which informed him that a disciplinary case had been opened against him for using the company's cell phone to access pornographic websites.
- Finally, a letter is sent to the employee describing the facts as very serious and proposing a public reprimand, a measure contemplated in the applicable collective bargaining agreement. Subsequently, a prior conciliation was held with the result of NO ADVANCE.
- The plaintiff filed an appeal before the Superior Court of Justice in which he alleges that the company: did not adequately detail the facts in the communications sent, generating a situation of defenselessness; that the infraction was already prescribed when the disciplinary file was resolved; that his right to privacy was violated since the company accessed the corporate cell phone without access protocol or authorization and without the presence of the plaintiff's representative, which seriously affects his privacy.
Main Conclusions:
- Lack of specificity in the communication of the sanction: the company did not provide details on the exact dates or circumstances of the improper accesses to pornographic content, which generated defenselessness in the plaintiff.
- Lack of policies on the use of corporate devices: there was no policy or protocol prohibiting the use of company cell phones for private purposes.
- Expectation of privacy of working personnel: in relation to the above, i.e., in the absence of an express prohibition on the personal use of the corporate cell phone, working personnel may have a reasonable expectation of privacy with respect to its use.
- Infringement of the right to privacy (Article 18 EC): when an investigation is carried out on the employee's browsing activities, the right to privacy enshrined in the EC is violated.
Resolution:
- Nullity of the penalty (Article 182.1.d) LRSJ).
- Compensation (article 183 LSJ): in the amount of 7501 euros.
