The Constitutional Court, last 7th October gave a judgment against a worker which was dismissed from an undertaking for sending confidential information to the competence, via corporative e-mail and mobile telephone.
In the year 2010, the Labour Section of the High Court of Madrid denied the possibility of recognising to a worker that an undertaking had breached the right to privacy and secret of communications for entering into its corporative e-mail. This is a case where two rights are opposed: right to privacy and right of the entrepreneur to exercise its powers. The main lines of the resolution are the next:
- There must be a considerable balance between the workers obligations and the scope of their fundamental rights.
- The right to the secret of the communications has Constitutional support in article 18.3. It protects the process of communication in a sphere of freedom. The Constitutional Court points that informatic use of mediums property of the undertaking by the worker, and the faculties of the entrepreneur to exercise its control powers in relation to these mediums, are admissible if they respect fundamental rights. Moreover the intensity of the vigilance and control taken by the entrepreneur must be proportionate and moderated, always attending to the situation. The conduct that the worker was carrying was illicit because he was using these mediums for foreign uses to the permitted. Furthermore the worker could have never had expected that there was a possibility of confidentiality through these mediums, because it was an open communication canal.
- Attending to the right to privacy, article 18.1 of the Constitution refers to it as the right to privacy in private life, excluding third persons from its knowledge. Additionally this right is applicable not only in domestic and private spheres, but also in work and in the exercise of professions. However, this is not a limitless right, it must be accompanied by a reasonable expectation of privacy and confidentiality, and in this case the worker neither was nor protected from thirds intromission.
- Lastly, the access of the undertaking to the email has not been disproportionate or excessive.
To sum up, the Constitutional Court has stated that, attending to the nature of the illicit conduct by the worker and the consequences for the undertaking, it cannot be observed that the companies’ acts have been disproportionate in relation to the consequences fort the worker.