The role of workers’ representatives in drawing up policies on the use of digital devices (IT policies)

Comments on STS (Sala de lo social), Secc. 1.ª, n. º 225/2024, of 6 February.

In its recent ruling no. 225/2024 of 6 February, the First Section of the Fourth Chamber of the Supreme Court upheld the nullity of the instructions given by a company to its staff regarding the permitted use of the digital devices made available to them, which also provided for control mechanisms (monitoring, etc.) in this regard.

The reason for the invalidity of the guidelines established by the company is the lack of participation of the workers’ representatives in their drafting, contrary to the provisions of art. 87.3 of the Organic Law on Data Protection.

The Chamber thus dismissed the appeal brought by the company, in which it claimed that the annulment of the instructions infringed its right to company control, as provided for in art. 20.3 of the Workers’ Statute. In particular, the appellant argued that the instructions challenged by the trade union representatives of its workers constituted a mere reminder of the usage policy established and communicated prior to the entry into force of art. 87.3 of the current LOPD, at the end of 2018.

Although the Chamber concedes that the mandate provided for in art. 87.3 LOPD does not have retroactive effect, it concludes that the controversial instructions did not represent a mere reminder, but a fundamental change in the rules of use and control applicable in the organisation, and therefore confirms the nullity agreed at first instance by the Social Chamber of the National High Court.

The denial of retroactive effect to the provision for the mandatory participation of workers’ representatives has relevant implications. First, it would not be necessary to update policies drafted and communicated prior to the entry into force of the current LOPD at the end of 2018. Consequently, the lack of involvement of employee representation in their development should not call into question the legitimacy of the evidence obtained under such policies.

The court does not rule, as it is not the subject of the litigation, on the admissibility as a source of evidence of the information collected by means of computer records covered by a policy drawn up after the entry into force of the LOPD (7/12/2018) without the participation of the workers’ representatives. In this regard, it should be noted that, if such guidelines were respectful of the principle of proportionality in relation to workers’ rights to privacy and data protection, their invalidity should not automatically entail the unlawfulness of the evidence obtained under such instructions.

Dr. Albert Estrada Cuadras

Carla Sans Argilés

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