Supreme Court restricts contact with employees’ private phone numbers and email addresses

Spain’s Supreme Court has declared void a clause in a contract of employment which obliges employees to give their private mobile numbers or private email addresses to their employer. The Court announced its ruling a fortnight ago, although the judgment itself has not yet been published.

The clause which was being considered in this case stated:

“Both parties expressly agree that any communication relating to this contract, the employment relationship or the role can be sent to the employee via SMS or via e-mail, by text message or by a document attached to a text message, in accordance with contact details provided by the employee. Any changes in relation thereto should be communicated to the company as soon as possible."

Announcing its decision, the Supreme Court acknowledged that employees could voluntarily provide mobile telephone numbers or email addresses to their employer and indeed, it may be desirable for them to do so. The Supreme Court held, however, that with a clause like this, drafted by the employer, it is not clear that the employee’ s consent has been given freely and voluntarily, in light of the employee’s weaker bargaining position against the backdrop of a shortage of employment opportunities in Spain.

There is an exception in the Data Protection Act, which states that express consent need not be obtained to collect personal data for the “the commencement or maintenance of a contract of employment.” According to the Supreme Court’ s announcement, however, this exception does not apply in these circumstances as it is not “necessary” to collect a private mobile telephone number or private email address in order to create or maintain an employment relationship, as is evidenced by the fact that employment relationships have managed to exist until recent times without such methods of communication. The Court distinguished private email address or mobile numbers, from “professional” email addresses or mobile numbers which have been provided specifically for the professional use of the employee.

For these reasons, the Supreme Court declared the offending contract clause null and void, meaning it cannot be relied on by the employer.

The full impact of the Court’s ruling will become apparent once the judgment is published. In the meantime, if you have any questions about how your organisation may be affected by this ruling please do not hesitate to get in touch.