Employer's control or employees' privacy?

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The Spanish Constitutional Court extends employers' right to control digital communication technologies between employees.

As a consequence of the "Digital Employment" development, it is more and more frequent for the companies to provide their employees with new communicating tools such as instant messaging (IM) and chatting programs that let them communicate each other easily and remotely without ever having to pick up the phone. And when the employer does not make it possible, it is employees themselves who promote the usage of these programs instead.

Although many of these tools are becoming pretty useful, being a real-time alternative to calling when it's not a good time to talk and developing the teamwork and the social relationships between the employees, sometimes these practical advantages can result in undesirable conducts and reduce the productivity of the company. For that reason, employers seek to control unauthorized uses and ensure a usage for the intended working purpose. But has the employer the right of access to the employee's computer and to intercept and read employees' conversations?

According to a recent judgment of the Spanish Constitutional Court of December 17, 2012, which has addressed these new concerns for the first time, it is possible for the employer to monitor IM programs used between employees when its use is not authorized by the company, even when the control action interferes with the employees' constitutional right of privacy and secrecy of communication.

This has been the case of two employees who decided to install an IM program on a public computer in order to maintain private conversations criticizing their colleagues. The program, that had recorded the conversation automatically on the hard disk, was accidentally discovered by a colleague, who informed the company causing both employees to be verbally punished by reading aloud their conversations. They decided, consequently, to sue jointly the company and the informer in the understanding that the access to IM conversations was disproportionate and unnecessary to check the breach of the company order (do not install programs without the prior consent of the company) and also had meant a transgression of their constitutional rights of privacy and secrecy of communication.

On the contrary, the Court understands that such intrusion into employee's rights is substantiated enough on the employer's right to manage and organize the company. Basically, the court decision is founded on 3 grounds:

(i) The computer was property of the company, public, and did not require personal password, so employees' communications were presumably open, not secret, and remain outside the field of constitutional protection.

(ii) Therefore, it was employees themselves who eliminated the privacy of their conversations including them in a public computer accessible to others.

(iii) The employer's right to manage and organize the company includes the possibility to establish conduct and usage codes for the tools provided and also control whether the usage respects these guidelines or not and, in this particular case, the usage was not authorized.

In such way, the Spanish Constitutional Court (despite the joint dissenting opinion of two judges) departs from its previous doctrine, more protective regarding employee's privacy in the workplace, and excludes the application of the case law of the European Court of Human Rights (Copland vs. United Kingdom, 3 April 2007 § 41; Halford vs. United Kingdom, 25 June 1997 § 44; Amann vs. Switzerland, 16 February 2000 § 44, among others). In future, therefore, the employees' right to chatting as a digital communication alternative will depend on the privacy controls they set, the usage restrictions previously settled by the employer, and also on the public/private status of the relevant computer and tools used. All these circumstances will be surely considered hereinafter by courts, on a case by case basis, whenever a test of proportionally and appropriateness should be made.

Obviously, the flexibility implicit within Digital Employment needs greater control by the employer but Does this pronouncement really constitute an optimum balance between the employer's right to manage and organize the company and the employees' rights to privacy? Is Digital Employment contributing to the elimination of the workplace privacy to the extent it raises new digital media that should be controlled?