Accessibility at work, am I allowed to use my cell phone for personal topics, or can I use my personal device for labour matters?
Disconnection is one of the most important aspects in our current lifestyle. Unplugging is increasingly difficult to do due to the excessive use we all make of our electronic devices. In fact, according to a study by Ditrendia, Spanish citizen do spend an average of almost 4 hours a day using our smartphones. A statistic important enough to focus on the use of cell phones at work.
Doubts about the use of cell phones at work
The scenario has evolved to a point where the vast majority of us use our personal phones for work-related duties, or our company phone for personal matters. In fact, nowadays it is practically impossible for us to differentiate between these two worlds. A number of questions arise:
Are employees allowed to use my cell phones for private purposes?
Can my boss restrict or prohibit me from using my cell phone for personal matters during my working day?
What happens if I use my business phone for private matters?
These questions are spreading around in our daily performances; let’s try to clear up these issues.
Can I limit the use of my company phone for personal matters in my company?
Organic Law on Data Protection
First, we must have a closer look at the Organic Law on Data Protection (LOPD), specifically Article 87, which states that: "Workers and public employees shall have the right to the protection of their privacy in the use of digital devices made available to them by their employer".
Furthermore, it states "The employer may access the content derived from the use of digital media made available to workers for the sole purpose of monitoring compliance with work or statutory obligations and ensuring the integrity of such devices".
On the other hand, "Employers must establish criteria for the use of digital devices, respecting in all cases the minimum standards for the protection of their privacy in accordance with social customs and the rights recognised constitutionally and legally. Workers' representatives must be involved in drawing them up".
Therefore, the first conclusion we draw from this Article 87 is that the use of cell phones as such (as long as it is not for criminal or unlawful purposes) cannot be prohibited at work. However, limits or criteria for use shall be established.
Workers' Statute
We have some exceptions to the rules. According to art. 58 of the Workers' Statute Law, the employer may restrict the use of mobile phones or certain applications if they are being abused. A prior communication establishing terms of use must be announced in two different ways:
First, through an internal communication stating both, the prohibition and the sanctions.
Secondly, by incorporation of a specific clause in the employment contract that the employer has with the employee.
What about the use of personal mobile phones for work-related purposes?
Although there is not much legislation on this issue, we can find some rulings that will spread some light on this question. On the one hand, and as a general answer, a ruling of the National High Court (reaffirmed last year by the Supreme Court (SC)) declares as an abuse of company law the fact that the worker has to provide his own device for the performance of his work. In this way, it would be breaking the alienation of the means, one of the most fundamental characteristics of the employment contract.
Let us review this issue in detail. There is another Supreme Court ruling which even goes so far as to state that the employee, if he so wishes, is not obliged to give his e-mail address or telephone number to the contracting company.
Use of cell phones at work, the Right to Privacy
The employee's Right to Privacy is very well protected by current legislation. The law that protects this right is Organic Law 1/1982, of 5 May, on the civil protection of the right to honour, to personal and family privacy and to one's own image.
Due to the provisions of this Organic Law, over the years, case law has been created in which any technological device in which the family or personal life of any person is carried out is protected by the right to privacy.
The use of technology by our workers and in our companies is increasingly limited. If you need to monitor the use of technology in your business by means of control applications, whatever your doubts and requirements related to employment topics are, simply reach out for Carrillo Advisors. Our Labour Department will be more than happy to assist you!
