Can the employer check employee mail?

Lawyou — jueves, 25 de febrero de 2021

New technologies have become an essential tool for most jobs. Computers, tablets and smartphones facilitate the performance of tasks, but they can also become a reason for confrontation in the workplace. The use of corporate email for personal matters, and the possibility of control by the company is one of the causes of dispute between employer and employee.

Rights at stake

On the one hand, the right to personal privacy of citizens and the secrecy of communications, as well as the right to privacy, (recognized in the Spanish Constitution itself and in the Convention on Human Rights), are applicable to any worker as a citizen.

On the other hand, the power of management of the company and the power granted to the employer to adopt measures of surveillance and control of labor compliance of workers, which is recognized in Article 20 of the Statute of Workers, can work for the benefit of the employer, protecting his right to observe and control the use of corporate communications (those that the company makes available to the employee), made by the worker.

Doctrine of the European Court of Human Rights

On September 5, 2017, The Grand Chamber of the European Court of Human Rights upheld a worker dismissed for using company-owned IT facilities for private purposes within his working day. The company, located in Romania, monitored the communications made by the worker and controlled the use of his email without prior notice.

The judgment states that it was not demonstrated that the employee had been warned by the employer of the possibility that his communications would be monitored, nor of the nature and scope of such surveillance.

For the Court, the ruling does not mean that a boss cannot review workers’ professional emails or fire them for using resources for personal purposes. The key is that «surveillance be accompanied by adequate and sufficient safeguards against abuse» such as prior warning.

Labor legislation

Labor regulation establishes a series of limits to make corporate email monitoring lawful:

The employer must

  • Establish the rules for the use of the company’s IT resources and expressly prohibit their private use. In the absence of express prohibition by the employer, the collective bargaining agreement must be reviewed.
    • Warn workers that there will be company control over the use of IT resources and the control methods to be used.

    If you see that your boss or manager exceeds these limits, do not hesitate to contact us at

    Contractual clauses in this regard are very important.

    In addition, the control decision must be proportionate. To this end, it must be justified (for example, that there is suspicion of an irregularity on the part of the employee) and be idoneous and necessary for the intended purpose (to verify the suspicions and justify the disciplinary dismissal in view of a legal challenge). Finally, the control must be weighted and balanced: a working methodology must be used to ensure that only information relevant to the intended purpose is accessed.

    In summary, the labor jurisdiction and European case law do not oppose a company’s ability to audit, with prior notice, the computer tools used by an employee. However, not just any conduct on the part of the employer is validated, since it is required that the control measures be proportionate and have a reasonable and logical cause.

    And it depends on the employer’s procedure, whether his conduct can be endorsed or punished by the courts, regardless of the merits of the case.

    At LAWYOU we have the solution.

    At LAWYOU we have lawyers who are experts in this matter who will help you manage the matter or solve any type of doubt that may arise at any time. Get in contact with us through our email or call us on 602 226 895.

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