The restrictions imposed by the employer on the professional or personal activity of employees outside of the company must pass the judgement of proportionality to ensure that they do not violate the fundamental rights such as personal and family privacy, information and the right to expression.
Judgement delivered by the High Court on 6 March 2018 [JUR\2018\71419]
The defendant banking company unilaterally developed a code of ethics and conduct in which it lists the principles of action to govern the professional activity of its employees.
The plaintiff trade unions requested that the code of ethics and conduct be declared null and void for having violated the fundamental rights to dignity, ideological freedom, privacy, free thought, education, trade-union freedom, legal certainty and effective legal protection.
For the High Court, the conflictive issues included in the document were the following:
1. The employees could only occasionally participate as speakers at external courses or seminars and had to inform both Human Resources and the direct manager of the speaker beforehand.
In this regard, the High Court understands that all employees who may be affected by a conflict of interest are required to communicate it to the company management, which may only be required when a conflict of interest may exist between the employee and the bank, but not when the employee wishes to perform any professional activity and speak at external courses or seminars. Therefore, for the High Court, the prior communication is a measure that exceeds the power of management and surveillance of the company and is an unjustified interference in the right to personal and family privacy
2. Express prior authorisation is required by external communication management for any interlocution or contact with journalists and any type of media and for any dissemination and information relating to the company in any type of media or social network, including news, reports, economic and/or financial information, accounting information, business objectives, trademarks, photocopies, etc.
For the High Court, this prohibition delves into the field protected by the right to information and freedom of expression and, although certain limits may be established, particularly relating to the bank’s strategy, business predictions or corporate image, which must be made with maximum caution and prudence to prevent any possible dissemination of sensitive information, the drafting of such a section is contrary to the rights to freedom of expression and freedom of information, proclaimed in article 20.1.a) and d) of the EC, and as a result must be declared null.
3. It is prohibited to carry out professional activities that can cause a weakening in the performance, that limit the availability or adaptability of schedule and commitments, or that may coincide with the provision of services at the company.
For the High Court, this content does not exceed the judgement of proportionality relating to the risk that it attempts to avoid. Prejudging that any external collaboration or participation by employees will affect the provision of services to the company’s favour and which, therefore, must be known and authorised beforehand by the company implies omitting the existence of the fundamental rights to the personal privacy and dignity of the employee and the possibility that the employee may perform other activities which could be of a very different nature, without interfering with the employee’s commitment, means the content must be declared null.
Ultimately, for the High Court, the provisions indicated in the company’s code of ethics must be declared null.