We are searching data for your request:
Upon completion, a link will appear to access the found materials.
We are in the era of technology, it is normal that the use of electronic devices (mobile phones, tablets, computers ...) has skyrocketed. However, there are workers who go too far in their use, using them for totally different purposes.
It is increasingly common to see procedures of this type in Courts. There are court rulings that endorse the measures taken by companies as long as they respect the criteria of suitability, necessity, proportionality, justification, weighting and balance.
Furthermore, one of the reference sentences is from Supreme Court, of the Social Chamber (section 1), of September 26, 2007, it was established that the use of electronic devices must follow the aforementioned criteria.
The remarkable thing about the sentence consists of a constant debate between the application of article 18 of the Workers' Statute (hereinafter, ET), and the power of supervision and control of the employer established in article 20.3 of the ET. Concluding that the control of the use of computer media is regulated in accordance with article 20.3 of the ET.
"3. The entrepreneur may take action that he deems most appropriate of surveillance and control to verify compliance by the worker of their labor obligations and duties, keeping in their adoption and application the consideration due to their dignity and taking into account, where appropriate, the real capacity of workers with disabilities. "
In such a way, that to avoid legal conflicts for the use of electronic devices, companies have the power to regulate the use of devices in the workplace, provided that the protocol is clear, that is, both the employer and the employee must be well aware of the limits of the legal framework that defines this matter.
Yes the company has not established a conduct in this regard, it can be used, always in a way that does not interfere with the development of work activity. The company cannot ask the worker to show it the electronic devices to see if they have been used during working hours, as it would be incurring a violation of the right to privacy of article 18 of the Spanish Constitution.
As an example we have the sentence of Superior Court of Justice of Catalonia of November 26, 2012, in which it is declared:
"(…) The appellant affirms that the use of the mobile phone is abusive, excessive and disproportionately long, however, there is no proven evidence that it gave instructions on use or abuse or that it will limit the time of calls (…)"
It is a sentence of dismissal for abusive and excessive use of the mobile, However, there was no prohibition on the part of the company, so the dismissal was declared inadmissible. Therefore, ¿Can the employer fire a worker for the abusive use of the company mobile phone?
The jurisprudential doctrine has understood that the abusive use of the means that the employer makes available to its workers is a cause of dismissal from article 54 of the ET, based on transgression of contractual good faith, as well as the abuse of confidence in performance from work.
In conclusion, there is no regulation regarding the use of electronic devices during business hours. They lack legislation that regulates this use, to avoid conflicts and misunderstandings, it is necessary that the company, from the first moment, establish clear limits on the use of electronic devices. Undoubtedly, this would avoid conflicts and future lawsuits.