New ruling by the Constitutional Court on the violation of an employee's fundamental rights through monitoring tools

The employee, dismissed for disciplinary reasons, appealed on the grounds of unconstitutionality to the Constitutional Court, after the High Court of Justice of Madrid declared that monitoring her computer was unlawful. The Constitutional Court did not rule on the classification of the dismissal, but recognised the employee’s right to receive the corresponding compensation for the violation of her fundamental rights.

The Constitutional Court judgment of March 15th 2021 (rec. 6838/2019) rules on the appeal of the “project officer” of Amadeus Soluciones Tecnológicas S.A. who was dismissed after the company activated, without prior notice, the protocol for monitoring her computer equipment. As a result of this monitoring, the company discovered that she spent 70% of her working day on personal matters unrelated to her working activity. The letter of disciplinary dismissal included the following labour infringements:

• Transgression of contractual good faith and abuse of trust in the performance of her professional work.
• Indiscipline or disobedience to work instructions.
• Offences towards her line managers.

The employee filed a lawsuit before the labour courts claiming that, as a result of the monitoring and access to her personal e-mail, her fundamental rights to privacy and secrecy of communications (set out in article 18.1 and 3 of the Spanish Constitution) had been violated,. The Social Court of Madrid partially sustained the case, declaring the dismissal null and void and recognized the employee’s right to severance pay for violation of her fundamental rights.

Dissatisfied with the above ruling, the company appealed the decision to the High Court of Justice of Madrid . The High Court recognised that the intrusion into her work computer violated the employee's rights, but qualified the dismissal as unfair and rejected the compensation previously awarded. This is because, although it considered that the unlawfulness of the evidence entails its nullity, this fact does not automatically imply the nullity of the company's disciplinary decision.

Given this turn of events at second instance, the employee appealed the ruling to the Supreme Court, where her appeal for the unification of doctrine was rejected, and then to the Constitutional Court.

The Constitutional Court has recently ruled on the matter, partially upholding the appeal for a constitutional protection. Although the Constitutional Court does not rule on the qualification of the dismissal, it argues that, in both null and unfair dismissal, the Court must rule on the financial compensation resulting from the violation of fundamental rights in order not to infringe the employee’s right to effective judicial protection. All of this by virtue of article 183.1 of the Law Regulating Social Jurisdiction, according to which the courts are obliged to establish compensation, in the amount corresponding to the damages suffered, when the judgement declares the existence of the violation.
Consequently, the Constitutional Court has annulled the judgment of the High Court of Justice of Madrid, and has instructed the Court to return the proceeding to the time prior to issuing the judgment, in order to resolve the matter in a manner that respects the fundamental right that has been violated and to set the corresponding compensation.

Nevertheless, this was not a unanimous ruling, as the judgement has the dissenting opinion of Judge Maria Luisa Balaguer Callejón, who disagrees with the treatment given to the matter in the majority's of the judges. According to her opinion, the issue has a clear constitutional aspect, and the Constitutional Court has dealt with it avoiding any further examination of the violation of the Constitution and invoking ordinary legality. Likewise, she also argues against the dissociation of the dismissal from the nullity of the evidence obtained in violation of fundamental rights. The magistrate defends that, since the employee’s monitoring was the cause of the dismissal, it is not sufficient to declare the illegality of the evidence, but rather it must be taken into account that the dismissal is based on a violation of fundamental rights, which should lead to the nullity of the dismissal and the corresponding compensation.

To sum up, the case analyzed shows that the control of electronic devices in the workplace is a particularly conflictive matter, since there is a collision between the freedom of corporate control and the fundamental rights of employees. In order for the protocol on this matter to be considered legitimate, it must follow the principles of necessity, suitability, proportionality and transparency, requiring compliance with the duty to inform employees beforehand that their activity is being monitored.