BELZUZ ABOGADOS, S.L.P. Labour Law Department - Spain wants to recap the current frame of corporate obligations on surveillance of employees’ activities and the possible conflict with workers’ right to privacy.
This is not the first time we take the opportunity to comment on a matter of this kind, and in our article “Vulneración de los derechos a la intimidad y al secreto de las comunicaciones en el ámbito laboral español” (Infringement of the rights to privacy and secrecy of communications in the Spanish workplace), we analysed the judgement gave by the Constitutional Court which confirmed the legality of the corporate surveillance of communications between employees, who used IT resources which had not been reported to the company and, therefore, were not authorised by the company.
Judgement Barbulescu, as extensively reported, rule in favour of a worker due to the disproportionality of the company surveillance and the lack of required guarantees in accordance with the implementing legislation. The Court makes an extensive review of the specific circumstances of the case but, interestingly, makes so in the light of the principles detailed methodically to reach a solution for the case. The review of the principles allows us to know the kind of surveillance that is permissible within the EU legal framework.
Firstly, it is absolutely essential to report to the workers the potential surveillance of their communications or activities as clearly as possible and before such surveillance.
It is clear that a distinction has to be made between the abstract surveillance of communications and the concrete assessment of their contents. This core distinction allows to establish a scale of measures that may be used, choosing always the least invasive, provided that it is effective.
With regard to the aforementioned, it is an essential requirement having a well-proven justification on the need for surveillance, on the understanding that the more invasive the method (i.e. contents monitoring), the greater the justification. In this regard, it is not permissible a vague reference to damages that computer equipment may have if evidence is not provided of such danger.
The ECtHR also states a limitation, which, we believe, is directly related to Data Protection, and a review on the data use made by the employer through surveillance must take place. In this case, it is about ensuring the compliance with the data protection legislation as well as ensuring that the employee has sufficient knowledge of the consequences of such surveillance.
Lastly, and highlighting the principle of proportionality, the intrusion must be limited as much as possible, the employer cannot access the contents of the employee’s communications unless the employee is notified beforehand of such surveillance.
The arguments raised by the ECtHR Grand Chamber will most certainly have an impact in the interpretation made by our Courts from now on, therefore they should be taken into account whenever corporate policies are assessed with regard to surveillance and access to the worker’s communications.
We, at BELZUZ ABOGADOS Labour Law Department - Spain, believe that it is essential to anticipate the potential risks and plan a proper communication surveillance policy that allow the company to protect its needs while respecting employees’ rights.
Belzuz Abogados SLP
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