Infringement of worker's rights in the monitoring of an employee's computer

Infringement of the worker's rights when the computer was inspected

The First Chamber of the Constitutional Court partially upholds the amparo of a worker who was dismissed from her company after finding, through the monitoring of her computer, that she devoted around 30% of her working day to professional matters, using the remaining 70% of her working day to deal with matters relating to her personal sphere.

The judgment, handed down on 15 March 2021 in amparo appeal no. 6838/2019, considers that the actions of the Social Division of the High Court of Justice of Madrid violated the appellant's right to effective judicial protection, since, although it acknowledged that the worker's rights to privacy and secrecy of communications were violated, it refused to rule on the compensation requested as a result of this violation.

On the other hand, the Constitutional Court ruled out that the nullity of the evidence obtained with the violation of the worker's right to privacy and secrecy of communications should lead to the classification of the dismissal as null and void, and considered that the interpretation of art. 55.5 of the Workers' Statute by the High Court of Justice of Madrid in classifying the dismissal as unfair, despite the nullity of the only evidence on which the dismissal was based, was not contrary to the right to effective judicial protection.

The applicant for amparo worked for a company engaged in technology-related services. In April 2017, the company informed her of the opening of disciplinary proceedings for breach of contractual good faith and disobedience to the instructions of her hierarchical superiors.

To confirm this, the company decided to implement the protocol for monitoring the employee's computer equipment in order to determine how she spent her working day.

The evidence obtained from the computer monitoring was unlawful.

In May 2017, the company informed her of her disciplinary dismissal, arguing, among other things, that the employee spent 70 per cent of her working day on personal matters unrelated to her professional activity.

The judgment of 17 November 2017 of the 19th Labour Court of Madrid found that the fundamental rights to privacy and secrecy of communications had been violated, declaring the dismissal null and void. The judgement argued: "the monitoring of the plaintiff's computer allowed the company to know and record everything that appeared on her screen, and resulted in the knowledge of e-mail messages, not related to work and therefore personal, which the plaintiff sent to family members and her legal advisor, as can be seen from the content of the dismissal letter itself". It also ordered the payment of compensation as a consequence of the infringement of her rights.

On appeal, the judgement of the Fourth Section of the Social Division of the Madrid High Court of Justice of 13 September 2018, handed down in appeal no. 351/2018, confirmed that the evidence obtained by monitoring the computer was unlawful as it had been obtained in violation of fundamental rights, but classified the dismissal as unfair and, for this reason, refused to rule on the compensation awarded by the labour court for violation of fundamental rights.

Both parties filed appeals in cassation for the unification of doctrine, which were rejected by order of the Social Division of the Supreme Court on 24 September 2019.

The judgment of the First Chamber states that the contested decision of the Madrid Supreme Court did not infringe the worker's rights by classifying the dismissal as unfair instead of null and void, since "it cannot be said that there is a logical and legal continuity between the classification of the dismissal and the recognised extra-procedural infringement of a fundamental right. In other words: there is no fundamental right to the classification of the dismissal as null and void, so that the plaintiff's claim cannot be based on an infringement of the rights recognised in art. 18.1 and 3 EC". On the other hand, it considers that the reasoning of the Madrid Supreme Court, contrary to drawing a correlation between the nullity of the source of evidence and the nullity of the dismissal, does not deserve to be described as arbitrary or manifestly unreasonable, and therefore rules out the possibility that the classification of the dismissal as unfair prejudices the appellant's right to effective judicial protection.

Finally, the First Chamber considers that the right to effective judicial protection (art. 24.1 EC) has been violated by disregarding the right to obtain from the judges and courts a reasoned and well-founded decision on the merits of the claims put forward by the parties in the proceedings. In effect, "the argument used in the contested judgment to deny compensation, which consists of stating that there has been no violation of the worker's fundamental rights, must be described as incongruent, illogical and contradictory, since the judgment itself recognises that the worker's rights were violated when her computer was monitored".

Therefore, "this inconsistency cannot be overcome with the reference to the fact that the violation was not caused by the act of dismissal itself and, consequently, the dismissal has been declared unfair, since art. 183. 1 LRJS, when it states that the judgement declaring the existence of a violation of a fundamental right must rule on the amount of compensation, does not make the recognition of compensation dependent on the classification of the dismissal, but on the recognition that the worker has suffered discrimination or another violation of her fundamental rights and public liberties, and this regardless of the classification of the dismissal".

Consequently, the Constitutional Court annulled the judgment handed down by the Fourth Section of the Social Division of the Madrid Supreme Court and ordered the proceedings to be taken back to the time prior to the issuing of the aforementioned decision so that, in line with the appeal in the appeal for annulment in relation to the compensation requested by the plaintiff, the judicial body could resolve the matter in a manner that respects the fundamental right that has been violated.