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New technologies are creating situations in employment relationships that have never arisen before. Grounds for dismissing staff based on irregular use of a computer are now emerging.
The courts must weigh the rights of the employer against those of the employee, and it is not always clear which should prevail. The most recent case law gives us an opportunity to understand the courts' position when it comes to classifying a dismissal arising from irregular use of a computer or its software.
In every employment relationship, the employee has a right to privacy and to confidentiality of communications, which must be respected. At the same time, the employer holds supervisory and monitoring powers that may be exercised to ensure that staff fulfil their obligations. The rulings discussed below examine various situations in which judges must determine whether a dismissal is fair or unfair.
CASE LAW IN SPAIN:
USING A WORK COMPUTER TO PLAY 'SOLITAIRE':
ruling of 4 April 2000, employment tribunal No. 1, Barcelona.
This ruling examines the employer's powers in relation to the employee's right to personal privacy.
The employee was aware that using a company PC for personal purposes was strictly prohibited by the company. Nevertheless, he played 'Solitaire' on a daily basis during working hours. Although the misuse of the computer was proven, the dismissal was found to be unfair.
This conclusion was reached because continuous monitoring had been installed on the computer's activity, which exposed to view every programme the employee had used and every keystroke made over the preceding two months.
Recording all computer activity on the device violated the personal privacy of the person using it, since that individual was unaware that their actions were being logged. Because this type of monitoring was carried out without prior notification that everything done on the computer would be recorded, the dismissal was deemed unfair.
Digital monitoring is legitimate, the Workers' Statute empowers employers to monitor the work-related activity of their staff. Where necessary to protect company assets or the property of other employees, employers may even search the employee personally, as well as their lockers and personal belongings, within the workplace and during working hours.
What is not legitimate is carrying out inspections without informing the person that they are going to take place. If the individual who is to be monitored is not notified, they act in ignorance of the fact that a third party has access to information that may reveal political or trade union preferences, sexual inclinations, medical conditions, religious beliefs, or matters of any other personal nature. This constitutes a violation of the fundamental right to personal privacy that every individual holds.
COMPENSATION AWARDED TO employee FOR PC INSPECTION:
ruling of 20 February 2000 of the High Court of Justice of Andalusia:
This ruling concludes that the employer must have sufficient justification to inspect a company-owned PC that is used by one of their employees.
The defendant company was ordered to compensate the user of the computer after conducting an inspection of the workstation assigned to that employee. The company made copies of the 'My Documents' folder and of another folder the user had created under the name 'Pepote'.
The Court drew a comparison between the computer and a locker, treating it as a work tool belonging to the company that should not be used for any purpose other than carrying out work-related activities. On that basis, there is no room to speak of personal documents stored on the computer's hard drive.
Nevertheless, the ruling also affirms that the right to inspect a computer terminal is not absolute or unconditional, it must be exercised only when necessary to protect the employer's assets or those of the company's other employees. For this reason, some justification must be put forward. As with a locker, the dignity and privacy of the employee must be respected to the fullest extent, and the presence of a legal representative must be ensured.
The Court found that the company had not provided sufficient justification for the PC inspection and that it had violated the individual's right to privacy, causing harm that must be compensated and was quantified at 50,000 pesetas. This establishes that an employer cannot carry out inspections of its computers without prior notice, and that if it does so, it must provide adequate justification for such an inspection.
OBSCENE ONLINE CHAT. fair dismissal:
ruling of 5 July 2000 of the High Court of Justice of Catalonia:
This ruling examines the dismissal of two employees and declares it to be justified, meaning no compensation is payable. The central issue concerns private communications conducted through improper use of the company's computer systems.
The employer had expressly warned on two occasions that no employee was authorised to use company IT equipment for purposes unrelated to the company, or to transmit information or material that breached its internal policies.
Despite these prohibitions, the two employees exchanged emails with each other containing obscene and derogatory remarks about their female subordinates. They were dismissed on these grounds. In the claim they brought before the court, they alleged that their emails had been accessed unlawfully, thereby violating their fundamental right to confidentiality of communications.
The Court held that the emails did not constitute private correspondence between individuals whose secrecy must be protected. It concluded that the employees had made improper use of company IT equipment and systems for purposes outside the scope of their employment. This meant that the employer was entitled to monitor how its IT equipment, which it owned, was being used, as well as the employee's conduct in the performance of their duties.
The decisive factor that tipped the balance in favour of a finding of fair dismissal was that the employees knew that emails were being recorded.
Only on that basis could the company lawfully implement the monitoring and oversight measures it deemed appropriate to verify compliance by the employee with their employment obligations, whilst applying those measures with due regard for personal dignity.
The Court therefore concluded that the case involved a breach of contractual good faith, an abuse of trust in the workplace, and acts of insubordination and disobedience, all of which constituted valid grounds for dismissal.
SEXIST EMAILS; fair dismissal:
ruling of 14 November 2000 of the High Court of Justice of Catalonia.
A further case examining whether the sending of emails for purposes unrelated to the performance of work duties constituted a breach of contractual good faith is this ruling handed down in Catalonia.
The court found the dismissal of a bank employee to be justified. The employee had sent 140 humorous, sexist and obscene emails to 298 recipients both inside and outside the workplace. Some messages even promoted his wife's business. The employee had 30 years' service with the company and had never previously been subject to disciplinary action.
This extensive activity of drafting and sending emails was carried out using the company's own resources. It was also established in court proceedings that the time spent composing these messages, sending them, and having them received by recipients amounted to many working hours hours.
The first-instance ruling, now under appeal, had found the dismissal to be unfair on the grounds that the loss of productive working time was minimal and that the employee had never previously been subject to disciplinary action. The company appealed, and the High Court found the fair dismissal.
The Court reached this conclusion on the basis that there had been a breach of contractual good faith. This principle holds that every employment relationship carries an implicit obligation to observe duties of conduct and loyalty in the performance of one's work. Employees must fulfil these obligations with diligence and integrity, so as not to act against the company's interests or betray the trust placed in them as a employee.
The Court further specified that computers are working tools belonging to the company. As set out in the collective bargaining agreement, using these tools for purposes unrelated to work constitutes a serious disciplinary offence.
These are the grounds on which the court found the dismissal to be fair, with no entitlement to compensation.
THE USE OF COMPUTERS IN OTHER EU MEMBER STATES:
On 2 May 2000, the Labour Court of Brussels examined the dismissal of an employee who had been using company email to exchange intimate messages with a colleague. The company chose to terminate the employment relationship after determining that this conduct was having a negative impact on performance.
The Belgian court analysed the European Convention on Human Rights and confirmed that sending personal emails from the workplace does fall within the employee's private life. However, having assessed the monitoring of such emails as both necessary and proportionate, it concluded that the dismissal was justified, taking into account the size of the files, the private nature of the emails, and the volume of messages sent.
In Paris, the courts consider email to be equivalent to any other form of private correspondence, and any interference with it falls within the scope of a breach of communications confidentiality.
The content of emails is protected by the right to private communications enjoyed by every individual, and an employer cannot simply access them without justification.
CONCLUSION
Although computers are provided as work tools, they are capable of performing so many functions that employees may use them for personal purposes. When this occurs, personal or private documents may be stored on the device.
To avoid infringing on the right to privacy that every individual enjoys, clauses may be included in the employment contract informing the employee that the company does not authorise the use of company computers or their programmes for personal purposes, and that, in order to monitor the use of company resources, recordings of hard drives and software usage may be carried out.
