The company’s IT expert found some temporary archives in the employee’s computer while repairing the system which evidenced that he had accessed websites with sexually explicit contents. As a consequence, the employee was dismissed. In respect of the limits applying to the employer’s ability to control employees use of computers at work, the Supreme Court has ruled that:
i. In principle, employers are entitled to access their employees’ computers under article 20.3 SW which expressly provides that employers may adopt supervision and control measures as may be deemed appropriate to verify their employees’ compliance with their duties, maintaining in the adoption and application of such measures the necessary consideration to human dignity.
ii. However, given that there is a generalised tolerance among employers to certain moderate uses of the computing resources, and in observance of the general principle of good faith, employers should determine expressly and beforehand which uses of the working tools are allowed and which are not, to avoid generating reasonable expectations of privacy.
iii. Pursuant to the European Court of Human Rights’ prior rulings, temporary archives which register the personal use of the internet may contain private information regarding, the individual’s ideology, sexual orientation or hobbies etc. Therefore, accessing these files constitutes an illegitimate intrusion of the employee’s privacy.
In light of these considerations the dismissal was held to be unfair since the evidence provided to base the decision had not been duly obtained.
What this means for you
To avoid these situations, as the Supreme Court suggests, it would be useful for companies to reinforce the legal certainty of the practices and policies employees are expected to comply with by issuing, for instance, codes of conduct or ad hoc mailing letters. In any case, employers should always exercise their control powers with due proportionality and caution.