Spanish Supreme Court rules on the validity requirements of policies for the use of digital devices

The Social Chamber of the Supreme Court, in its judgment No. 225/2024, of 6 February, clarified that the intervention of the workers' representatives must occur both at the time of drafting the policies, as well as in the subsequent phases of modifications, clarifications or updates.

Article 87 of Organic Law 3/2018 of 5 December on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD) provides that when work is carried out using digital devices, employers must establish the corresponding criteria for use, and that such establishment must be carried out "with the participation of workers' representatives".

In the judgment's analysis, the company's policy on the use of digital media (drawn up prior to the entry into force of the LOPDGDD) expressly prohibited the use of electronic devices for other non-professional purposes. 

Company communication

In January 2022, the company informed employees that, in order to prevent misuse, the company would have access to all computers and corporate email addresses. In this way, the company reserved the right to access at any time the computer equipment it owned and made available to the workers, and could at any time analyse, examine, format and reset them using the appropriate IT means at its disposal (computer audit, computer forensic examination, screen capture software, etc.).

This communication was made without consulting the legal representatives of the workers, since the company understood that it was just a reminder and not the implementation of a new policy for the use of digital media. 

Article 87 of the LOPDGDD guidelines

The LOPDGDD regulates this matter in its article 87, establishing the following rules:

• Workers have the right to the protection of their privacy in the use of digital devices.
• Employers may access digital media while respecting the rights of workers.
• Companies must have rules or criteria regulating the uses of digital devices in the workplace, in the preparation of which the legal representation of workers must participate.

Legal representation of workers 

The Supreme Court confirmed the nullity of the communication made by the defendant company regarding the use of computer equipment, based on the following:

• Although the mandate of article 87 LOPDGDD does not have retroactive effects, any modification of the criteria previously established at the entry into force of the LOPDGDD, or any specification thereof, extension or restriction must follow the rules established in the law in force. 
• The present case deals with a modification or update of the criteria established in the company, and which, therefore, should have been established with the participation of the legal representation of workers. 

Osborne Clarke comment

In conclusion, this is a relevant ruling of the Supreme Court on the rights of workers in the digital environment, which highlights the importance of collective bargaining in labour relations, so it is advisable that companies are properly advised before updating and/or modifying their policies on the use of digital devices.