The role of monitoring by the company of the activity of remote workers, in the face of both data protection and the justification for dismissals, is an issue that has caused rivers of ink to flow. And it will continue to do so, of course… although a case has recently come to light which helps to delimit said role.
This is the case of a telephone operator from Valladolid who was fired for “transgressing contractual good faith and lowering her productivity voluntarily and continuously”, both pretty generic accusations due to the fear of the hiring company to provide concrete evidence that could justify the dismissal…
…this is, monitoring results of the employee’s screen during working hours, which showed that the employee was dedicated to consulting (and participating in) Internet forums during her working hours.
It was finally the employee herself, seeking to defend herself from the dismissal and trying to get her annulment, who put said monitoring on the table by claiming that it had violated his right to privacyforcing the Social Court of Valladolid, first, and the Superior Court of Justice of Valladolid, later, to rule on it.
But was this the case? Did the company lack legal support when monitoring it? Let us remember, first of all, that the Spanish Agency for Data Protection establishes what a company must prove about its use of monitoring software:
your needbased on the type of work the employee performs.
your suitabilityas there are no less intrusive alternatives that provide the same result.
Its proportionalityso as not to justify any degree of intrusion into privacy.
How to request the DIGITAL CERTIFICATE of NATURAL PERSON from the FNMT
Monitoring yes, but unfair dismissal
Therefore, both courts had to assess these three aspects, as well as investigate the existence of an informed consent by the employee (which would not even have been necessary if it had not been a personal device of the employee herself). As it has become clear that the affected party explicitly authorized the monitoring after being notified of the scope of the monitoringthe final statement finally supports the use of monitoring.
That does not mean that the company has won a great victory: as he did not present concrete evidence at the time to justify the dismissalthe sentence establishes that the disciplinary dismissal was inappropriate (although not null, as the employee demanded based, precisely, on the alleged intrusion into her privacy).