The Central Labour Court (Audiencia Nacional) has deemed abusive the inclusion of a clause in the employment contract allowing the employer to make communications to its employees by means of SMS or email.
In its ruling dated 28th January 2014 the Central Labour Court states that in accordance with data protection legislation, the mobile phone number and email address of an employee are personal data.
Hence, the inclusion of a clause in the contract under which both parties agreed to the use of the SMS and email as means of contacting employees; was an imposition on the employees of the obligation to provide their personal data.
Further, in this case, the company was not able to prove the data were necessary for the maintenance and development of the employment relationship, and therefore did not fall under the legal exception to the requirement of the employee's consent included in Article 6.2 of the Data Protection Act.
In conclusion, for the Court, the inclusion of this clause in an employment contract implies an imbalance between the obligations of the Parties under the employment contract and an excessive use of the company's managerial powers.