The company, which produces cooked products for home delivery, announces to workers' representatives that it is going to introduce a new working system aimed at making it easier for customers to track their orders. To this end, it informs that employees who carry out delivery functions must bring a telephone with an internet connection of their own and download the company's computer application that allows the geolocation of the device and the worker during their working day. The employee is responsible for activating and deactivating the application at the start and end of his or her shift, and the company undertakes to pay its employees a fixed amount per working day.
As a consequence of this new system, the company includes in new contracts a contractual clause according to which, in the event of repeated non-compliance with these conditions, the company mayterminate the contract and suspend it for a period of up to 2 months if, in the event of a breakdown, the cell phone is not repaired within 10 days.
Dissatisfied with the measures proposed, the trade union representatives of the CCOO and UGT brought an action for collective conflict in which they requested that the project and all the measures envisaged in it be declared null and void.
The NA recalls that case law has admitted that employers may impose geolocation systems on workers, although the implementation of this measure, insofar as it involves interference with workers' fundamental rights, must pass the proportionality test. Likewise, with regard to the data obtained through these systems, the LOPD (currently LO 3/2018 art.90) establishes that employers may process them in the exercise of the functions of control of workers provided that they are exercised within its legal framework and with the limits inherent to it; the employer having the obligation to inform, expressly, clearly and unequivocally, the workers and, where appropriate, their representatives, of the existence and characteristics of these devices. Therefore, the NA considers that the new system, as implemented by the company, violates the workers' right to privacy for the following reasons:
- a)Although the measure obeys constitutionally legitimate purposes such as the control ofthe employee in the performance of his job and better customer service, the measure does not pass the proportionality test. The same purpose could have been achieved with measures that involve less interference with fundamental rights, such as the implementation of geolocation systems in motorbikes or bracelets with such devices that do not require the employee to provide their own means or personal data such as telephone number or email address.
- b) In the implementation of the geolocation system, the company has not provided workers with thelegally required information (LOPD art 11 and 90; RGPD art 12 and 13).
- c) Imposing on the employee the obligation to bringa mobile telephone with adata connection for work purposes is a manifest abuse of the employer's right, since it violates the alienation of the means that characterises the employment contract and makes the employee responsible for any impediment to the activation of the location system. Furthermore, the compensation offered by the company for the provision of the mobile terminal only compensates for its use at work, but not if the employee did not wish to use it for his or her personal life.
- d)The so-calledtermination clause included in the new contracts and in the novation agreements, in fact implies the adoption of a disciplinary regime outside collective bargaining, since in practice it acts as a real cause for disciplinary dismissal, since the formal guarantees of disciplinary dismissal (ET art. 55) are disregarded in order for the non-compensated contractual termination to take effect.
On the other hand, one of the representatives also considers that the measures were adopted without complying with the requirements ofinformation and prior consultation of the works council (ET art.64.5). On this issue, the NA declares that the company failed to comply with this obligation, since it limited itself to informing of the measures it intended to adopt but without detailing the personal data that the worker had to provide in order to access the application, or its processing until the application had already been implemented.
In view of the foregoing, the claims raised are upheld and the project proposed by the company is declared null and void, declaring the obligations included therein and the disciplinary measures provided for to be null and void.