last September, the high Court of Justice (TSJ) of Castilla-La Mancha upheld the disciplinary dismissal of a commercial agent for unjustified absences from his job. Among the evidence provided by the company are to prove the inactivity of the employee, were the geolocation data from the GPS in your company car, revealing that he had dedicated himself “to make personnel” during your day.
This is not an isolated case. The generalization and improvement of the GPS technology allows the companies that put a vehicle available to their workers, that they make use of it to inspect if these meet, or do not, with their work obligations. And, in turn, this has opened a new front of litigation has forced the courts to draw the line between surveillance for legitimate or intrusion into the privacy of the workers.
Of the increasingly numerous statements on the matter, it is worth to extract the following general rule: the company can employ the GPS data to control their workers, but only if you have previously informed them of this and provided that the surveillance is limited to the working hours. Respect to both requirements off the allegation to which often appeal employees disciplined or dismissed, which is accusing the company of infringing on their rights to privacy and to the protection of data.
For the moment, there are no pronouncements of fund by the Supreme Court, but, indirectly, yes has validated the position that they are maintaining the judicial bodies below it. In a car of the past month of July, the high court rejected an appeal based on that would be unlawful for a test consisting of the data from the GPS in the van of an inspector of a contract of cleaning. The worker had been dismissed for disciplinary reasons after the system detected that I had spent half a dozen nights (night shift) at their home instead of working. According to the resolution, there is no violation of privacy because the inspector “he knew” that could be controlled via GPS from his van.
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The Supreme, in addition, underpins another idea relevant. The company satisfies its duty of disclosure with a generic communication about the presence of geolocators and their use for surveillance. It is not required, İlbet therefore, to determine which workers may be subjected to inquiry or order exact for that work of control.
The omission of one of the two requirements of information will lead to cancellation of the test practiced and, in consequence, to the nullity of the dismissal. This is what happened in a case reviewed by the Superior Court of Justice (TSJ) of Andalusia, in October last year, admitted the appeal by a worker against his removal, because his company had assured him that the installation of the GPS tracking, exclusively, “to ensure the safety and coordination”. The skip which also served for the surveillance, violated their right to privacy.
‘Tablets’ and mobile
it Would be wrong to think that the doctrine described only applies to those jobs that have a company vehicle. The function of the geolocation is present in many other tools, mainly computers, mobiles or tablets which can also serve as instruments of control.
In fact, a year ago, the supreme court of Asturias gave by good the disciplinary dismissal of a trade that was discovered going on diets of alleged foods on the street, when the GPS of your tablet indicated that at that time he was in his home.
The legislator is no stranger to the problems that may cause the connectivity of an increasing number of working tools. Thus, the new organic law of protection of data includes article 90, which regulates “the right to privacy to the use of geolocation systems in the workplace”. Agreement with the line that have kept the courts, the precept requires that “prior”, the company report “of an express, clear and unequivocal” about the existence and characteristics of these devices.
At this point, Clear, Crafty, a senior associate of Araoz&Rueda, he remembers the importance that the organisation retains some proof that proves that the worker has received the information timely. Otherwise, the court may presume “that was not given or was insufficient”.
in Addition, Ignacio de Azua, partner Read, points out that the control functions of the Workers ' Statute allows the employer are limited to the time frame of the working day. “The exceed vulneraría the privacy of the employee,” he explains. End that, precisely, signed a few months ago another judgment of the supreme court spaniard, forcing a company to disable the GPS from the worker at the end of their shift.
The director of the Spanish Agency for Data Protection (AEPD), Sea, Spain, confirms that the use of the GPS in the workplace is a subject that has raised various queries. In fact, this will be one of the issues addressed by the guidance on the treatment of data of employees in the area of labor relations that the agency wants to present in 2019. “Here the case law always lags behind reality, so that we will continue to address the doubts of those who need it”, he concludes.
Refuse to turn it on
Refusing to install or turn on the GPS is not a legal way to escape the legitimate control of the entrepreneur. So what underlines another judgment, confirming the dismissal of a worker who repeatedly did not comply with its obligation to enable the geolocator to track their routes. According to the court, the persistence in such an attitude constitutes an act of disobedience and indiscipline that justifies the maximum penalty to an employee: the cessation of disciplinary.