New communication channels between employers and employees
The surge in new technologies, especially in the use of smartphones and e-mail, means that we increasingly communicate with our colleagues and even our bosses by means of these technologies for work matters. But can an employer send its employees communications regarding their employment contracts or working conditions by e-mail or by text message, WhatsApp, etc.?
The Supreme Court took up precisely this issue in its judgment of September 21, 2015, in which it concluded that it is not valid for employers to include “standard clauses” in employment contracts that authorize them to send communications to workers regarding their employment contracts, employment relationships or job positions, by text message or personal e-mail, with the obligation on the employees to immediately and reliably communicate any change or incident with respect to their mobile phone number or personal e-mail address.
The Supreme Court held that the standard contractual clause analyzed did not guarantee that the worker had given his or her free and voluntary consent to providing such personal data and to the company’s using them for that purpose, as this was, pursuant to the provisions of the Data Protection Law, an essential condition for the employer to be able to process and use such personal data. The Supreme Court considered that the worker was the weaker party in the employment contract and that, when agreeing to these clauses at the time of hiring, the worker’s consent might be defective (out of fear of not getting the job).
However, the Supreme Court inserted the qualification that, where safeguards are in place to ensure that the worker’s consent has been given freely and voluntarily, it is not a problem for the employer to use these channels to communicate with the worker about matters related to his or her employment contract and working conditions.
This raises the question: is the Supreme Court opening the door to the validity of communicating, for example, a dismissal, geographical relocation, etc. through the worker’s personal e-mail address or other similar means?
Garrigues Labor and Employment Department