This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
This article is an extract from our Annual Review 2015.
Workplace technology is blurring the boundaries between personal and professional lives. Our employment partners shed light on who's watching whom...
A view from Spain by Daniel Cifuentes
Spain's courts have typically ruled in favour of employees, with employers preferring to settle out of court, but employers must be prepared for that to change.
When a Spanish supermarket caught one of its cashiers on CCTV giving products to customers free of charge, it thought it had a clear-cut case of dismissal for gross misconduct. Spain's Supreme Court, however, thought otherwise.
In a recent ruling, the court said that the CCTV footage was not valid evidence: while the supermarket had informed employees that CCTV was being installed for monitoring purposes, it had not expressly stated that the footage could be used against them. Employers in Spain should take note.
There are currently no specific national employment laws governing the use of technology in the workplace. The new challenges that digital employment poses are regulated purely by case law, and the courts have not looked kindly on companies without robust policies.
Companies need to anticipate and address potential problems in a digital employment policy that is regularly updated - ideally annually or biannually - in order to adapt to new technologies, practices and case law.
Unfortunately, employers have been slow to do this, despite the fact that the Supreme Court has set out criteria for what a policy should cover. The tendency has been to strengthen existing policies piecemeal in response to particular incidents rather than undertake a root-and-branch review in anticipation of potential problems.
Companies' lack of action is understandable. Spain is emerging from one of the worst financial crises in its history and employers have been focused on survival. Right now, their demands on government are for a reduction in social security costs, flexible hiring practices and cheaper dismissal costs.
Early case law suggests that the courts will come down in favour of employees, and this only emphasises the need for employers to prepare. In a recent case, Spain's National Court considered a company policy that required employees to provide a personal mobile phone number and email address. The company said it was to assist communications with employees but the court ruled it null and void, stating that the requirement breached employees' right to privacy and could potentially put employees 'on call'.
Taking employment cases to court in Spain is something of a lottery. Evidence against an employee needs to be very strong for an employer to succeed. In the technology age, this is compounded by lack of clarity on what type of evidence is invalid because it breaches rights to privacy. For this reason, employers prefer to settle cases out of court - but if Spain's lawmakers decide to catch up with the digital era, this may change.
Click here to view an electronic copy of our Annual Review 2015.