Monitoring at work: Spanish employer did not breach employee's right to privacy

The Spanish Supreme Court has ruled that the dismissal of an employee for using her work computer for personal purposes was lawful.

Ms Milagros was dismissed after she was found to be spending hours at work “chatting” and shopping on the internet. Her employer, Lingerie de Nuit, had a policy in place which made it clear that employees were not allowed to use their computers for personal purposes. When this matter came before the Supreme Court, it held that the dismissal was fair because LdN’s policy made it clear that it would not tolerate personal use of its computers. It could not therefore be said that M had any reasonable expectation of privacy in respect of her use of its IT systems.

This case is interesting and is clearly helpful to employers. Up until now most of the decisions in this area have gone the other way, even where employees have been accessing pornography at work or watching television during business hours. This is because the Courts had concluded that employees are entitled to privacy, even at work, and that employers were not allowed to “spy” on their employees’ online activities because this would constitute a breach of their fundamental right to privacy. The difference here was that the employer had made it expressly clear to its employees that they were not entitled to use their work computers for personal use and they did not therefore have any legitimate expectation of privacy. Furthermore, it said that if the personal use of the computer is actually illegal, employers are entitled to stop it.  

In light of this case, employers should ensure they have a policy in place which makes it clear what employees can and cannot do when it comes to using their internet access, computers, emails, telephones, etc. for personal use, and that the policy is consistently and robustly enforced.