Business control versus the right to privacy

The increasingly frequent use of new technologies in the field of labour relations, poses new challenges and scenarios that courts and legislators must address in order to create a setting that provides legal security to all parties involved. There are many interests that collide when it comes to prosecuting this matter, especially the protection of the worker’s fundamental right to e-privacy when he is unprotected amidst the disciplinary action of the employer; practiced in the field of the exercise of the direction of power and control of the labour activity; or of the recognised right to freedom of enterprise.

The development of new systems and apparatuses has led to endless consequences, some harmful to the worker and others beneficial to the employer.

Likewise, the implementation of internal policies that define the use of new technologies at work exclusively have become increasingly common within the business sector, thus becoming mere work tools. Moreover, the use of secret video surveillance as an instrument to control the worker relationship, when there are well-founded suspicions that there is some type of non-compliance on the part of the worker, has also become more prevalent. This premise serves as a springboard when considering new technologies as business control measures to verify compliance with the labour functions included in employment contracts.

In accordance with the provisions of Article 20.3 of the Workers’ Statute (ET), the employer may adopt the measures deemed most appropriate for monitoring and controlling, in order to verify compliance by the worker with their obligations and duties, ensuring due consideration to their dignity …

Thus, business control of the work activity presents multiple scenarios where the use of new technologies collides with the protection of the fundamental rights set forth in article 18 of the Spanish Constitution (which protects the right to honour, personal privacy and family as well as the right to personal portrayal). However, these rights are not absolute and have certain limits. Therefore, a criterion of adaptability must be based between the opposing interests of the parties. In this sense, the limits that the development of the labour relationship can impose on one’s own fundamental rights must be assessed. The protectionist framework to assess the validity of the means used in the exercise of corporate control is given by the test of the triple judgment or the test of suitability, necessity and proportionality.

This article is not considered as legal advice

Karl H. Lincke

As an Abogado & Rechtsanwalt, Karl H. Lincke is a Partner at Mariscal Abogados and specialises in M&A, Company law, TMT law and Real Estate law. Working languages: Spanish, German and English. For any further enquiries please Contact us