Friday, August 1, 2008


Employer’s right to monitor emails
Recent case law in Spain

By Sonia Cortes & Patricia Molina

A recent decision by the Spanish Supreme Court provides a new approach to employees’ right to privacy with respect to evidence provided by employers to justify termination for cause based on employees' unauthorized personal use, or misuse, of electronic devices made available by the company to the employee in order for him or her to carry out his/her duties during working time.

In this particular case, an employee was terminated due to access to pornographic websites from the company’s computer during working time.

The company became aware of this fact due to a virus that was caught during one of the visits to these websites. Technical support was required to repair this problem. Once the virus was found, the company decided to further analyze the computer to ascertain where these viruses were coming from. It was through this process that the company discovered that the employee had been visiting pornographic websites during his working time. The company terminated the employee based on his use during working time of a working tool supplied by the company to access pornographic websites and the serious damage that the virus had caused.

The employee challenged his termination arguing that evidence had been illegally obtained in that his fundamental right to privacy had been violated and that the search performed on the computer was not performed in accordance with the legal protection provided under employment law in connection with searches, namely: (i) that the employee must be notified of the search, (ii) that the employee is requested to be present during the investigation, (iii) that the employee representatives must be notified about the search, (iv) that witnesses are requested to be present during the search and (v) that the search is performed during hours of work.

The Court of First Instance stated that the termination was unfair given that the evidence had been unlawfully obtained. The court declared that the company had not complied with the provisions provided by law for searches of the personal belongings of employees. The Court of Appeal upheld this decision. The Supreme Court, however, overruled the decision by declaring the evidence legally obtained and thus declaring the termination to be fair.

It its decision, the Supreme Court rules that company computers should not be deemed personal belongings and thus, the protection provided by law in connection with searches of personal belongings is not applicable.

The Spanish Workers Statute provides that searches of the personal belongings of employees at company premises (the act specifically refers to employees' lockers) should be subject to certain requirements, namely that the employee is present or, in his or her absence, that two witnesses are present to secure the employee’s right to privacy. In addition, employee representatives should be informed of the search to ensure that the search does not infringe the employee’s privacy. The act also states that this search has to be carried out during working hours and at company premises.

In this particular case, the search performed on the computer used by the employee was (i) done without witnesses being present, (ii) without notifying the employee or the employee representatives and (iii) outside the premises of the company.

According to the Supreme Court, the key issue here is to ascertain whether electronic devices or tools are to be deemed personnel belongings of the employee in order for these tools/devices to enjoy the protection provided by law. In this sense, the Supreme Court declares that electronic devices or tools provided by the company to the employee in order to perform his/her professional tasks are work tools rather than personal belongings, and thus the relevant restrictions to searches are not applicable as long as the employee is informed beforehand through a company policy. The second key issue here is to determine how the company should proceed to control and monitor the use of these tools made available to employees taking into account that it is really difficult to prevent the employee from using such tools for personal purposes. Given the fact employees spend almost all their time working with such tools, it would be very difficult to prohibit personal use of them given the general practice that employees use company IT for personal use to a certain extent.

Monitoring and controlling tools as computers is thus justified (i) since these latter are tools offered by the company to the employee in order to develop his/her functions and to perform his/her tasks within the company and (ii) because of the normal course of business of the company, since it helps the company to coordinate and to ensure the continuity of the activities carried out by the employee in case this latter is absent.

Following the Supreme Court judgment, when the act refers to search conducted of “lockers” or personal belongings, it is not referring to any tool made available by the employer to the employee to render his/her services (i.e. computers), but to a place where the employees keep their personal belongings when at work.

Consequently, given that the Supreme Court has considered computers to be a work tool provided by and belonging to the company, the company can exercise the power of control offered by the workers statute in order to ensure the normal course of business of the company. Consequently, these searches will be justified when the normal course of business is involved and when this may result in damage to the company. However, in order to guarantee some protection to employees when electronic tools searches are to take place, the Supreme Court stated that companies should provide the employees with a handbook or company policy specifying the use that is allowed and what use is not.

It is thus essential that the company provides the employees with a handbook or company policy describing the use that is prohibited in order to guarantee operability as well as to keep the normal course of business of the company, and informing that management or other designated employees may have access to such tools, so that employees know that they should not expect privacy. The policy should provide: (i) the expected use of company tools and (ii) the employer‘s right to control and monitor employees’ work on a regular basis for purposes of maintaining the normal course of business of the company.

To the extent that the employee is aware of the lack of privacy, the company is entitled to access and monitor the content of electronic information contained in such computers. This is deemed part of the company’s right to monitor and control employees’ performance at work.

Therefore, according to this ruling, it is strongly advisable for employers to set up a company policy regarding authorized and unauthorized use of electronic tools (i.e. email, Internet, etc.) so that the company may justify termination for breach of this policy and may set forth the required evidence that would sustain a lawful termination, thus avoiding the risk that termination is declared null and void, thus resulting in employee’s right to reinstatement.