A couple of months ago, the Spanish Constitutional Court ruled that it is possible for the employer to monitor IM programs when its use has not been previously authorised.
Now, the Spanish Constitutional Court has issued another very controversial judgment (STC 170/2013 of 7 October) accepting the possibility of reading employees' emails to control their use of the company's account, without their consent and in the absence of a protocol or policy on computer monitoring.
The key issue in this case was that the applicable collective bargaining agreement expressly established that employees could be sanctioned for making a private use of the company's IT systems. According to the Court, this provision by itself implicitly empowered the company to control their use of professional email accounts and served to set an expectation on the employees. Therefore, it ruled that the company's conduct did not breach the employee's right to the secrecy of his communications, as he had no reason to expect such secrecy.
In addition, the Court declares that the company did not breach the employee's right to privacy since the measure was (i) justified, as it already had some indicators of what was going on, (ii) adequate to verify its suspicions, (iii) necessary, as it was essential to read the content of the emails to find out the extent of the employee's breach and (iv) proportional, as the monitoring was carried out under the supervision of a public notary and an IT expert.
This pronouncement clearly breaks a fairly consolidated doctrine among our labour courts, based on previous pronouncements of the Constitutional Court, which established that in order to frustrate employees' right to privacy when using their employers' IT systems, the company had to set a specific policy on this matter, make sure that all employees were aware of this policy and carry out regular announced controls.
We cannot know whether this is the start of a completely new trend or whether this is just going to be an isolated ruling where the Spanish Constitutional Court did not want to obstruct the dismissal of an employee who had clearly committed a very serious and culpable breach of contract.
What seems to be fairly clear is that this new ruling opens the door to common sense, by implicitly establishing that where a company suspects that an employee is committing a serious infringement of his/her contractual duties and obligations, it is possible to monitor his working tools provided that this the only means of verifying what is going on and that this is done with the supervision of a third party that guarantees certain objectivity and proportionality to the measure adopted.
Aymara Santamaria
Associate
Olswang Spain
Published in http://www.olswang.com/blogs/digital-employment/
