Dismissal based on the use of digital devices: Getting it wrong can be expensive


The recent judgment of the Spanish Constitutional Court of March 15, 2021, adds another milestone to the case law on disciplinary dismissals based on the information gathered from monitoring employees’ digital devices.

Dismissal based on the use of digital devices: Getting it wrong can be expensive
April 6, 2021

The recent judgment of the Spanish Constitutional Court of March 15, 2021, adds another milestone to the case law on disciplinary dismissals based on the information gathered from monitoring employees’ digital devices.

Employees carry out a significant part of their activity through corporate digital devices (computers, tablets, mobile phones). That activity leaves a trace or is directly visible through the devices themselves—generally connected to the network. This makes it technically possible to control performance and detect possible non-compliance.

There is controversy as to how declaring such access to the employee’s device unlawful affects the qualification of the dismissal and the right to compensation for moral damages.

Two conflicting interpretations are found precisely in the background of the case brought before the Constitutional Court.

The dismissal in question provided the perfect context for this debate. The employee had been disciplinarily dismissed by her company after it found, through a disproportionate monitoring of her computer, that she spent around 70% of her working day on personal matters and only the remaining 30% on professional matters.

The employee brought a claim against her dismissal, mainly challenging the company’s access to her computer. In none of the judicial phases of the proceedings was there any doubt that such access was unlawful. Despite the company’s internal regulations—known to the employee—allowing only a necessary, minimal and reasonable use of digital devices for personal purposes, the monitoring had been excessive, recording everything that appeared on the screen (including personal content).

Faced with these facts, the different courts adopted divergent approaches:

  • Labor Court No. 19 of Madrid considered that the unlawfulness (and thus inadmissibility) of such evidence (obtained by impinging on a fundamental right) entailed the complete elimination of its effects. Therefore as this was the only basis for the dismissal, the dismissal itself must also be declared null and void.

    Furthermore, given that the dismissal violated the employee’s fundamental rights, the company was ordered to pay €6,251 in compensation for moral damages (the employee claimed €51,439.40).
  • After the appeal against this judgment, the High Court of Justice (TSJ) of Madrid took the opposite position. According to this alternative approach, the unlawful monitoring carried out by the company only obliged the court to disregard this evidence for the purposes of qualifying the dismissal, but it did not entail its nullity. For this, the dismissal must directly violate the employee’s fundamental rights, which was not the case. Given that the remaining evidence failed to prove the alleged breaches, the court classified the dismissal as unfair.

    The court reasoned that since the dismissal had not violated any fundamental rights, no compensation should be awarded. Therefore, it revoked the previous decision.

It would have been desirable for the Spanish Supreme Court to take this opportunity to harmonize the case law, but it rejected the appeals filed by the parties.

Having exhausted these remedies, the employee filed an appeal for constitutional protectionbefore the Constitutional Court based on the indirect claim that her fundamental right to effective judicial protection had been violated: (i) in relation to the right to privacy and secrecy of communications (allegedly, the absolute unlawfulness of the evidence should have entailed the nullity of the dismissal); and (ii) because by failing to rule on the compensation claim, the TSJ of Madrid had allegedly breached her right to a reasoned decision on the merits of the matter.

However, the judgment of the Constitutional Court has not settled the issue of whether obtaining evidence in violation of fundamental rights automatically entails the nullity of the dismissal.

According to the Constitutional Court, the mere consideration of the TSJ of Madrid that obtaining unlawful evidence does not automatically entail the nullity of the dismissal does not violate the right to effective judicial protection claimed by the worker. However, the Constitutional Court does not rule on whether this interpretation is the correct one. This is a matter of ordinary legality and it is up to the Supreme Court to establish the relevant criteria. The Constitutional Court acknowledges the existing division among the courts, but it just points out that the position of the TSJ of Madrid “is positively rooted in our legal system and cannot be described as arbitrary or manifestly unreasonable.” Judge Ms. María Luisa Balaguer Callejón issued a dissenting opinion arguing that in the absence of grounds justifying the dismissal, the violation of fundamental rights to gather evidence of the only alleged breach should also lead to the nullity of the dismissal.

On the other hand, the Constitutional Court considered that the right to effective judicial protection had been violated in relation to the compensation for moral damages claimed by the worker, overturning on this point the decision of the TSJ of Madrid—to which it remanded the proceedings. Having expressly found that the evidence obtained by monitoring the computer violated the employee’s fundamental rights to privacy and secrecy of communications, the TSJ of Madrid should have awarded compensation for moral damages. In fact, article 183 of the Spanish Labor Procedure Act does not make this compensation for damages dependent on the qualification of the dismissal but on the actual violation of fundamental rights.

The judicial proceedings described above confirm that the company was wrong to monitor the employee’s computer. The TSJ of Madrid rejected the nullity of the dismissal, but it will be more expensive. In addition to the legal severance pay, the company will have to pay additional compensation for having violated fundamental rights in obtaining the evidence on which it intended to base the dismissal.

In short, companies should take note in the event they consider identifying employee non-compliance by monitoring their corporate digital devices:

  • First, they should have protocols on the use of digital devices at work expressly providing for the possibility of monitoring such devices—thus limiting as much as possible employees’ privacy expectations.
  • Second, they should get proper advice on how and when to monitor the digital devices made available to employees in order to prevent the evidence thus obtained from violating fundamental rights.

It is essential to follow this basic advice to avoid the risk (not excluded by this judgment of the Constitutional Court) that the dismissal may be automatically declared null and void. Also, to reduce the cost of the dismissal (regardless of its qualification), which can be more expensive if compensation for moral damages is awarded for an unlawful intrusion on the device made available to the employee.

April 6, 2021