Control and use of computing means of absent workers
We have found circumstances in which the Business Management has seen the need to access the computer and corporate email accounts of employees who are absent (holidays, disability,…), and yet it never broke in despite the imperative duty to perform the functions, all for the prudence of not committing a possible violation of law to the privacy of the worker.
First of all, it must be taken into account that the computer is a work instrument that the company makes available to the worker, being contrary to the good faith that must govern in any employment relationship the fact that it is used for personal purposes.
Taking the above for granted, a worker who finds himself, for example, in a situation of Temporary Disability and ignoring the time he will be without going to the workplace, it is amply justified for another colleague to take charge of carrying out his work using his corporate email account and the computer files that the absentee had been handling.
There is abundant jurisprudence in which this fact, if justified, does not incur in any violation of the worker’s right to privacy, understanding that the employer is empowered to control the use of computer media, provided that the dignity of the worker is respected and appealing to good faith.
The fragment of the Judgment of the Supreme Court, which although it resolves a case on dismissal, does affect that the evidence was obtained by viewing the information that a worker contained on his computer, not considering this fact as a violation of the right to its privacy:
“As the Supreme Court revealed in its judgment of March 8, 2011, the control measures< /em> on the computerized means made available to workers are, in principle, within the normal scope of these contractual powers: the < /strong>computer is an instrument of production owned by the entrepreneur and, therefore, he has powers of control< /em> of use, which logically includes its examination.
The control of the use of the computer< /em> provided to the worker by the employer is regulated by art. 20.3 ET and this precept must be with certain qualifications. The first of them refers to the limits of that control and in this matter the aforementioned precept refers to an exercise of the powers of surveillance and control that saves, in its adoption and application, due consideration for the dignity of the worker, which also refers to respect for privacy.
In this regard, it is necessary to remember the existence of a widespread social habit of tolerance with certain moderate personal uses of computer and communication media provided by the company to the workers; tolerance that also creates a general expectation of confidentiality in those uses, an expectation that cannot be ignored, although neither can it become a permanent impediment to control business , because, although the worker has the right to respect their privacy, You cannot impose this respect when you use a means provided by the company against the instructions established by it for its use and outside of the controls provided for that use and to guarantee the permanence of the service.
Therefore, what the company must do in accordance with the requirement of good faith is pre-establish the rules for the use of those media and inform the workers that there will be control< em> and of the means that must be applied in order to verify the correctness of the uses, as well as the measures that must be adopted in its case to guarantee the effective labor use of the means when necessary, without prejudice to the possible application of other preventive measures, such as the exclusion of certain connections.”
It is for all these reasons that the correct course of action would be to communicate with the employee affected by the temporary disability, if possible by email email, since we do not know what situation you are in, to request collaboration by providing the passwords, both for your computer and your email, alerting you to the need to be able to perform your duties as long as you are temporarily disabled, and informing you, where appropriate, that your computer will be intervened for the sole purpose of extracting the essential information to be able to carry out your work, and that it only works on your hard drive.
In case of absence of collaboration, and with prior request, it will be possible to access the computer and undertake work functions.
If the company has transferred to the workers, either in writing or through circulars, the regulations on the use of computers, prohibiting their use for private purposes, or informed of periodic controls to verify its use, it would not be necessary to require the worker and if they did, it would only be considered a show of good faith on the part of the company.