Technology is advancing faster than the regulations governing it. This is why, in the majority of cases, it is the courts that have to establish the limits between the validity of a technological tool designed to control a company’s production and the fundamental rights of its staff.
In this context, the National Court Judgment of February 6, 2019, mentioned in certain areas of the press due to the debate generated, declared the annulment of the “Tracker Project” implemented by a Company involved in the delivery of pizzas that obliged its deliverers to use their own mobile telephones with an Internet connection, in which they installed an application enabling the company to geolocate the worker during working hours.
The judgment deals with several issues to rule the annulment of the system.
Firstly, the National Court considers that the Company did not provide sufficient information to the workers’ representatives on the mobile telephone data that the application can access, what information has to be provided by the worker and how such personal data is to be processed.
It also concludes that the computer application breaches the workers’ rights to personal data protection by failing to pass the proportionality test, given that the same result could have been obtained with measures involving much less interference in the employees’ fundamental rights, such as the implementation of a geolocalization system on motorcycles or a wristband used for the same purpose.
In addition, it considers the requirement for the worker to provide his/her own mobile telephone with an Internet connection as an abuse of law by the company, as it is not only making the worker responsible for providing the means to work, but also imposing the suspension of employment contracts and the loss of salary when any obstacle prevents the activation of the system.
Finally, the Court annulled the clause terminating an employment contract when the employee fails to use the application correctly, given that the Company is therefore establishing a penalty and infringement regime in individual contracts, which should be subject to collective bargaining.
In light of the digital revolution taking place and driven by new technologies, it is likely that in the near future there will be other similar judgments defining the guidelines to be observed in relation to the protection of labor rights, in an attempt to balance the legitimate intentions of companies to supervise the work performed by their employees and the workers’ fundamental rights.
