Court and AEPD criteria to accept geolocation as admissible evidence in dismissal proceedings
Employers often provide company vehicles to certain employees, who are expected to use them during working hours and appropriately, i.e., to do their job. However, employees sometimes use the vehicle to deceive the company, e.g., to claim that they are elsewhere, to receive travel or mileage allowances.
Companies can detect this misuse by installing geolocation systems in the car. The courts’ criterion about these monitoring mechanisms is interesting, since the proof of the employee’s misconduct can conflict with fundamental rights like the rights to privacy and personal data protection. If the company disregards this risk, the evidence produced could be invalidated, and any disciplinary measures could even be annulled.
It is noteworthy that the Labor Chamber of the Supreme Court delivered a Judgment on September 15, 2020 (appeal 528/2018) upholding that, if the company fulfills certain requirements, it may use the data obtained from the GPS installed in the employee’s company vehicle to prove the misconduct justifying the disciplinary dismissal.
In its judgment, the Supreme Court upholds the use of data from a GPS installed in a company vehicle, which is to be used only during working hours, as long as the employee is informed. The Supreme Court thus rejects the Andalusia Regional High Court’s (TSJ) approach, which had found the dismissal invalid in this case. This shows that the case is controversial, but some doubts are being cleared up.
Spanish Regional High Courts are starting to embrace the Supreme Court’s line of case law, as shown by the Madrid TSJ judgment of April 21, 2021 (appeal 144/2021), which upheld the disciplinary dismissal of a union representative for unduly collecting allowances. In this case, the company found that the employee had requested allowances for days on which the GPS installed in his car showed that he was in the city where he lives at lunch time.
The appellant employee claimed that (i) the GPS data had been obtained violating his privacy; (ii) these data could not be used for disciplinary purposes; and (iii) he did not know that the GPS had been installed in his car (although the company vehicle use policy stated it, adding that GPS data could be used to monitor the employee’s performance).
In line with the Supreme Court, the Madrid TSJ upheld the use of GPS data to justify an employee’s disciplinary dismissal, concluding that this use complies with constitutional requirements and articles 20 bis of the Workers Statute and 90(2) of Organic Act 3/2018 on Personal Data Protection and Guarantee of Digital Rights (LOPDGDD).
The Court’s reasoning, which offers guidance on how companies should act in these situations, is in line with the limits outlined in the Spanish Data Protection Agency’s Guide on data protection in employment relationships (the “AEPD Guide”) published in May 2021 for the purpose of a potential penalty imposed by the AEPD.
In particular, based on these two references, article 90 LOPDGDD allows the use of geolocation systems to monitor employees, based on an employment contract, and subject to the following requirements:
- The GPS should only be used if there is no alternative and less invasive geolocation system (principle of proportionality).
2. According to the AEPD Guide, companies must give their employees prior notice and, if appropriate, their representatives, expressly, clearly and unambiguously, about the (i) existence and characteristics of these devices; and (ii) possible exercise of the rights of access, rectification, restriction of processing and erasure.
The discussed judgment also imposes this requirement, arguing that, although the employee had not signed the vehicle use policy-stating that the GPS was installed in the car and that its records could be used for disciplinary purposes-there is proof that (i) this policy was sent to the employee in various emails; (ii) it was available on the corporate intranet; and (iii) the employee was called to various briefings on the policy and did not attend any of them. Therefore, the employee could have knowledge of the policy content and thus the company fulfilled the information requirement.
3. There is an additional requirement: that geolocation fulfill the principles of data minimization and purpose limitation, i.e., that it be used exclusively for the aim pursued. The discussed judgment thus upholds the company’s actions because they are in line with this limit:
- As for the data recorded by the GPS, the judgment finds that the geolocation system is an appropriate monitoring mechanism not affecting privacy because it (i) simply records when the vehicle is started and stopped and its location; and (b) is not able to record any personal circumstances of the vehicle passengers (e.g., it does not allow to monitor the driver’s behavior or for ongoing monitoring).
- As for the period that can be recorded by the GPS and reviewed, the judgment confirms that the monitoring was only during working hours. In this case, the limit was fulfilled because the company car could only be used for the job. Therefore, although the GPS was permanently installed, the geolocation system had only kept track of trips during working hours.
Considering these limits, the Supreme Court finds that, under these circumstances, the use of GPS devices in motor vehicles is suitable, necessary and proportionate to the employment relationship.
In conclusion, according to the courts’ criterion, a company may impose a penalty on an employee (including a disciplinary dismissal) using the company vehicle’s geolocation data without interfering with the employee’s fundamental rights as long as (i) there is not a less invasive mechanism; (ii) the employee is informed of the GPS’ installation; and (iii) the recorded data do not include any personal aspects-only the vehicle’s location.