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As new technologies become embedded in the workplace, questions inevitably arise about how they interact with employment law. This gives rise to disputes between employees and employers that end up before the courts. Over time, a new legal framework has been gradually taking shape to address this emerging phenomenon.
The main challenge is the lack of specific legislation governing this area, given how recently these issues have emerged. The existing legal basis derives largely from court decisions that have resolved individual disputes on a case-by-case basis.
This article aims to provide an overview of the key conflicts arising from the integration of digital tools into the workplace, as well as to outline the limits of managerial authority and the types of employee conduct that may constitute grounds for dismissal.
POLICIES ON THE USE OF DIGITAL DEVICES IN THE company MUST BE DRAWN UP WITH THE INVOLVEMENT OF EMPLOYEE REPRESENTATIVES
The recent ruling of the Supreme Court 566/2024, of 6 February, establishes that any change to policies on the use of digital devices requires the participation of employee representatives, in accordance with Article 87.3 of the Spanish Data Protection and Digital Rights Act (LOPDGDD). Download the ruling here
IMPROPER USE OF NEW TECHNOLOGIES: EXERCISE OF DISCIPLINARY AUTHORITY:
When an employer makes any work tool available to its employees, it expects them to use it for the performance of their professional duties.
From this perspective, personal use of such tools could be sanctioned as a breach of the duty of good faith under the employment contract.
Equally, if the employer has given employees clear instructions on how those tools are to be used, or for what purposes they are intended, any unauthorised use constitutes a failure to comply with the employer's instructions.
THE employee'S DUTY OF GOOD FAITH IN THE USE OF NEW TECHNOLOGIES:
Not every breach of contract by the employee justifies dismissal. The principles of fairness require a proper proportionality between the conduct in question, the individual circumstances, and the sanction imposed. In other words, dismissal should only be used as a last resort.
Even where the employer has made a corporate email account available to the employee for personal use, the company's general expectation is that it will be used exclusively for work-related purposes.
The conflict that arises in such cases is whether the personal use of company email constitutes a breach of good faith that justifies disciplinary action.
This is a situation that occurs quite regularly; many employees who have access to a company email account also use it for personal purposes.
Similarly, any use of company email by an employee for non-work purposes would fall within the scope of a breach of contractual good faith, as it involves using a work tool for unrelated purposes and failing to carry out the agreed duties.
To understand this last point, it helps to draw a comparison with the use of the telephone, the photocopier, or the fax machine. While it is perfectly acceptable for an employee to make a personal call during working hours, what is not acceptable is abusing that facility by wasting time that should be devoted to work.
Using company email for non-work purposes is far more damaging to the company than the occasional personal telephone call. It is worth highlighting the significant capacity of digital systems to transmit entire documents, which may compromise the security, reputation, or competitiveness of the company.
Personal data relating to employees or clients can also be easily leaked. It should be stressed that when an employee sends a message from a company email account, it is the equivalent of sending a letter on headed notepaper, the company's professional image may equally be put at risk.
In this context, the company must recognise and accept that staff spend more hours at work than at home, and that company email sometimes helps employees deal with a personal matter.
A degree of flexibility in employment relations should be encouraged.
As a result, an increasingly common practice among companies is to allow employees to access their personal email accounts from home during their own time.
FAILURE TO PERFORM WORK DUTIES EFFECTIVELY:
If personal emails are drafted and sent during working hours, it is clear that such conduct results in a reduction in productivity. This, in turn, may cause colleagues (if they are recipients of the messages) to also experience a drop in their own output.
All of this represents a cost to the business and supports the argument that the improper use of company email by employees constitutes a breach of contractual good faith and, consequently, grounds for disciplinary action.
To justify dismissal or disciplinary action, it is sufficient that the employee breaches the duties of loyalty implicit in any employment relationship, as well as the trust that the company places in them.
EMPLOYER MONITORING OF MESSAGE CONTENT:
The Workers' Statute grants employers the power to adopt whatever monitoring and control measures they consider appropriate to verify that the employee is fulfilling their employment obligations and duties, subject to the limit of respecting the employee's right to personal privacy.
This is the most complex aspect of all, which is why, in most cases, it falls to the courts to determine where the boundary lies between the employer's right to monitor and the employee's fundamental right to personal privacy and the confidentiality of communications.
Reviewing the most recent case law, we find a series of arguments and counter-arguments for and against employer monitoring of email:
· Ownership of the system:
This is the argument used to justify an employer's unrestricted access to employees' email messages, on the basis that doing so does not constitute an intrusion into their private sphere, since the IT system and the device used to access it are working tools that are the property of the company.
A counterargument to the above is that, even where the tools belong to the company, this does not prevent the employee from retaining a protected sphere of privacy in their use. A clear indication of this is the fact that the employee holds a personal access password for the account.
By way of conclusion on this point, it should be noted that the improper use of a work tool is indeed a sanctionable conduct and, where it exceeds what would be reasonably tolerated as incidental personal use, nothing prevents the employer from exercising their disciplinary authority.
However, this does not entitle the employer to go beyond verifying the breach itself. That is to say, once irregular use has been established, any attempt to access further details about the specific content of that use would infringe the employee's right to privacy.
· The analogy between the right to search lockers and employees' personal effects, and the monitoring of email:
The Workers' Statute sets out all the limits and procedures governing searches of employees' personal belongings. Accordingly, an intrusion into the employee's privacy is permitted, provided that all the safeguards prescribed by law are observed.
The work email account is a professional tool, and its purpose is not to carry personal messages, a fact that strengthens the employer's right to monitor it. Any degree of tolerance towards personal use of a work email account does not change the nature of the tool itself, which remains strictly work-related.<
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The increasingly common method of remote monitoring is carried out through server log files. This system allows the identification of both the sender and recipient of each message, along with the subject line, the size (in bytes transmitted) and the time of communication.
Case law on this matter is divided. In the Current Rulings section, two very recent judgments dealing with this topical and contentious issue are reviewed.
