Nullity of the sanction imposed on an employee for accessing pornographic web pages with a corporate device. Infringement of Articles 10 and 18 of the Spanish Constitution
This publication comments on STSJ no. 1850/2024, dated July 23, issued by the First Section of the Fourth Chamber of the High Court of Justice of the Basque Country, which upheld an appeal filed by an employee against a judgment issued in the first instance after the employee was reprimanded for using the corporate cell phone to access pornographic websites during working hours.
By means of STSJ no. 1850/2024, of 23 July, the First Section of the Fourth Chamber of the High Court of Justice of the Basque Country upheld the appeal lodged by a worker against the Judgment of 12 March 2024 handed down by the Social Court no. 7 of Bilbao. Thus, it has decreed the nullity of the Judgment handed down at first instance, and sentenced a video surveillance company to compensate the plaintiff in the sum of 7,501 euros for violation of fundamental rights; without imposition of costs.
Specifically, the applicant had been working for the defendant company as a security guard for approximately ten years when, on 31 March 2023, he was disciplined by the company after having accessed various websites with pornographic content during working hours using the company’s mobile phone. For this reason, he was given a public reprimand, in accordance with the sanctions provided for in the collective agreement applicable in the sector (State collective agreement for security companies for the period 2023-2026) as a consequence of the commission of a serious offence.
The mandatory prior conciliation was held without a settlement and, at first instance, Bilbao Social Court no. 7 dismissed the claim brought by the worker against the company, thus confirming the company’s sanction which sentenced him to a reprimand. The plaintiff’s representatives filed an appeal for review, revocation and annulment of the judgment handed down at first instance, requesting a review, revocation and annulment of the judgment.
He alleged a breach of Articles 75 and 76 of the applicable collective agreement, as well as of Article 60 of the Workers’ Statute, and also requested that the company be ordered to pay compensation to the security guard for breach of fundamental rights under Article 24 of the Spanish Constitution. In particular, he alleged an attack on the employee’s right to privacy and, therefore, an infringement of Article 10 of the Spanish Constitution and Article 183 of the Law Regulating Social Jurisdiction (hereinafter, LRJS).
With regard to Article 24 of our Magna Carta, the appellant stated that it had been violated because the letter of sanction issued by the company did not indicate the specific times or dates of the alleged offence and therefore, the imputation of a fact of notorious seriousness to the worker was not supported by sufficient evidence. Nor was it supported by an access protocol or authorisation, the employee’s electronic device having been accessed without the presence of a workers’ representative.
The High Court began by rejecting the appellant’s request to review the proven facts, considering that this was unnecessary and that the judgment handed down at first instance was based on the full content of the letters sent by the defendant company mentioning the days on which the plaintiff allegedly misused his mobile phone. On the other hand, it focuses its decision on the inadequacy of the letter of penalty issued by the company with regard to the facts that led to the warning given to the security guard.
In the present case, there was no specific prohibition on the use of the corporate telephone for private purposes by the company, nor was there any prohibition in the collective bargaining agreement. The letter of sanction referred to the very serious sanctions provided for in Article 74 of the applicable collective agreement, paragraphs 15 (‘The commission of immoral acts in the workplace or on the premises of the Company, within the working day’) and 20 (‘Engaging in games, and serious distractions, all during and within the working day’), but these make a generic reference without expressly prohibiting the use of pornographic content. This is why the Chamber concludes that an extensive interpretation in terms of penalties would violate the worker’s right to personal privacy.
Therefore, the formal requirements of article 115.1 d) LRJS of any letter of dismissal had not been complied with, as the letter contained generic references to accessing sexual content with the telephone, with illegible images and without providing access to the evidence on which the sanction was based. It also confirms that this constitutes a violation of the worker’s right to privacy (see Article 18 of the Spanish Constitution).
Finally, the present case is compared with reiterated case law of the ECtHR (the recognised ‘Barbulescu doctrine’), of the Supreme Court and the STC of 7 October 2013 (in the resolution of appeal no. 2907/2011) in which it was ruled that the employee had the right to foresee the possibility that the employer would exercise its legal power of surveillance and, therefore, could not protect his conduct on the basis of a reasonable expectation of privacy that would prevent entry into the sphere of protection of his right to privacy, Therefore, he could not rely on a reasonable expectation of privacy to shield his conduct from entering the sphere of protection of his right to privacy, having been warned by the company that his communications could be monitored.
In this way, the Chamber concludes that ‘the absence of an express prohibition on the use of the company mobile phone for private purposes allows us to affirm that the worker had a reasonable expectation of privacy in the use of said terminal’ and that the company would have committed an offence classified as very serious in accordance with the Law on Infringements and Penalties in the Social Order.
The infringement of the right to privacy declared by the Chamber confers the right to compensation on the plaintiff worker (see art. 182.1 d) and 183 LRJS) for the damages suffered, in the form of non-material damages, quantified at 7,501 euros.
Clara Tomàs
Internal Investigations Department of Molins Defensa Penal.