Your company can monitor your screen while you telecommute and fire you. Justice already endorses it

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A telemarketer from Valladolid was fired by her company for disciplinary reasons after her boss monitored her screen and verified that she was consulting and participating in internet forums during her working hours. The company does not give this reason to fire her, but points out that she violated contractual good faith and lowered her productivity voluntarily and continuously, quite generic justifications despite the fact that the Valladolid justice considers that the use of the monitoring software was adequate.

Why? The company did not use the evidence it had against its worker to justify her dismissal, predictably, to avoid problems. Since in order to be able to use this information in cases of this nature, the Spanish Data Protection Agency provides that the company must demonstrate the need to use the tool (justification for the type of work that employee does), its suitability (not there are less intrusive alternatives to achieve the same result) and its proportionality (that the end to be achieved is proportional to the intrusion into privacy that is carried out), as we already explained in Xataka.

However, to defend herself against the dismissal and try to get it annulled, the employee claimed that her right to privacy had been violated when her boss monitored her screen, so both the Valladolid Social Court, first, and the Court The Superior Court of Justice of Valladolid, after the appeal, had to assess whether the use of the software to follow the activity of the teleworker was adequate. And both judicial bodies have considered that it was, according to can be read in the sentence of the case.

informed consent. And it is that the company, before installing the tracking software on the employee’s personal device, informed her of all the details related to its operation and obtained her express consent to use it. Thus, as the affected party explicitly authorized it, justice considers that it was used without infringing her right to privacy.

Spanish jurisprudence supports the use of software to monitor teleworking as long as the employee is duly informed. In the event that the device used is personal, as was the case with this teleoperator, the company must obtain the express consent of the affected party. If the equipment belongs to the company, you only have to tell them in detail what the computer program does, but it is not necessary to obtain their express consent, as we already have at Xataka.

Judgment. Therefore, the company did not directly use the evidence it had after having monitored its employee’s computer in order not to get into too much trouble, and justified its dismissal in a generic way. But, if she wanted, she could have provided them, since, having the explicit and informed consent of the worker, she acted in accordance with the law. The only problem that the company could have had if it had used them is that the magistrates had considered that the measure was not necessary, suitable or proportional for the task performed.

In this way, as the company did not present concrete evidence to justify the breaches that it alleged when dismissing her, the courts considered that the dismissal could not be justified. But since the employee could not prove that her dismissal had been due to discrimination or violating her fundamental rights or freedoms, it could not be considered null either. Thus, finally, an unfair disciplinary dismissal was declared.

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Types of dismissal. It should be remembered that Spanish legislation contemplates three types of disciplinary dismissals. Proper dismissal, which is based on the serious and culpable breach of the worker due to indiscipline, violation of contractual good faith or continuous and voluntary decrease in normal or agreed performance, among others, according to the Workers’ Statute. Reasons that the employer must duly prove. In this case, the company has to compensate the affected party with an indemnity of 20 days of salary per year worked.

On the other hand, there is the unfair disciplinary dismissal, which occurs when the employer does not duly justify the reasons for the termination of the worker in accordance with the law. In this case, the company can dismiss the employee unilaterally without further ado, and for this reason the legislation provides for a higher compensation: 33 days of salary per year worked.

In the event that the dismissal is declared inadmissible by judicial means, as in the case of the teleoperator, the company can also opt for the reinstatement of the employee by paying the wages of the time they have been litigating, from the termination to the reinstatement.

Finally, the courts can declare a disciplinary dismissal, fair or unfair, null when they consider that it has been caused by discrimination, and not for labor reasons, or that the fundamental rights and freedoms of the worker have been violated to obtain the evidence that justifies the dismissal. cessation. In this case, the company is obliged to reinstate the professional immediately and pay him all the wages that he has not received in that time.

Image | Rodeo Project Management Software

A telemarketer from Valladolid was fired by her company for disciplinary reasons after her boss monitored her screen and verified…

A telemarketer from Valladolid was fired by her company for disciplinary reasons after her boss monitored her screen and verified…

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