Fundamental rights in the workplace: secrecy of communications and right of privacy
In parallel with the development of new ways of working and new methods for conveying or storing information, there has been a logical evolution in the views taken by the Constitutional Court on the protection of the right to secrecy of communications and the right of privacy at work, the most recent exponent of which can be seen in the Court’s judgment of October 7, 2013.
In that case, the Constitutional Court held that, since the 15th Collective Labor Agreement for the Chemical Industry (applicable at the company in question) expressly established the use of e-mail exclusively for work purposes, the fact that the company then screened e-mails without the consent or knowledge of employees did not violate their right to secrecy of communications or their right of privacy, from the moment that the employees could not have a reasonable expectation of confidentiality when using an instrument made available to them by the company for a strictly work-related purpose.
According to the Court, the practical lesson to be learnt from the case was that it was essential for each company to have a set of internal regulations on the use of electronic resources made available to its employees (including computers, smartphones, tablets, employees’ personal devices used at work under BYOD policies, etc.) and clearly defining the exclusively work-related nature of their deployment and use: something which, in principle, would permit control by the employer on the understanding that, as a result of such regulations, the employer had defined a strictly professional environment in which there was no room for personal use by employees.
As a parting thought, it will be necessary to analyze the margin for maneuver that the company has in each specific case, given the special nature of the protection afforded to the fundamental rights at stake, taking care in all cases to ensure that it conducts itself in a (i) proportionate, (ii) justified, (iii) suitable, and (iv) necessary manner to achieve the intended aim.
Garrigues Labor and Employment Law Department