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Legal and the Law in Spain

Business fined for sending email to employee outside working hours



The Superior Court of Justice of Galicia ruled in favour of an employee, after the business for which he works continued to send him emails – although they claimed that they were “without obligation to read” – after he had asked the employer to respect their right to digital disconnection, as reported by Luis San José, a labour lawyer at the AGM Abogados.

Given the situation, the employee decided to file a lawsuit, which has resulted in the company being sentenced to pay compensation of 1,000 euro, ratifying the employee’s right to disconnect, which includes a penalty for damages and another for violation of the Data Protection Law.

The magistrate highlighted in the ruling that the breach of the right to disconnection was carried out in contravention of the collective agreement of application of the private security company, which expressly specifies that businesses and companies in this sector will not be able to send emails electronics outside of business hours. In this regard, the ruling indicated the company’s duty to refrain from contacting the worker during non-working hours.

The worker expressly communicated to his company his desire to make his right to digital disconnection effective for the first time. Despite the letter, the company continued sending messages to his email and private mobile phone, so the employee again sent a second request for digital disconnection.

Subsequent to said communication, the company’s management continues to send a series of emails outside of working hours and for a period of four months “with no obligation to read or respond”, in addition to calls to his home telephone.

Due to the situation, the worker decided to sue the security company, which “violates what was agreed in the collective agreement on digital disconnection”, making these communications outside of working hours and through tools and devices not provided by the company itself.

Thus, the lawsuit has been settled with compensation to the employee of 1,000 euro: 700 for non-compliance with the Data Protection Law and a further 300 euro in damages, declaring the right to digital disconnection violated.

This is “linked, not only to the worker’s right not to respond to communications from the employer or third parties,” but also to the fact that there is a duty on the part of the company to refrain from contacting the worker, as stated in the collective agreement, San José pointed out.

As stated in the ruling, part of the messages sent to the employee were related to company training courses, derived from the position, that the workers had to carry out.

The court considers that the company does not demonstrate an objective and reasonable justification for its actions.

As the lawyer detailed, the opinion recalls the provisions of article 88 of the Organic Law on Data Protection: “Workers (…) will have the right to digital disconnection in order to guarantee, outside of working time (…), respect for their rest time, permits and vacations, as well as their personal and family privacy.”

And in addition, what is established in the applicable collective agreement of private security companies is highlighted: “the company will not make, in general, except in an emergency situation, telephone calls or sending emails or messaging of any type through the work tools made available by companies beyond the working hours of the worker”.

Under the court’s criteria, the fact that the emails and messages are “without obligation to read or respond” do not objectively and reasonably justify the business’s actions.

In this regard, the lawyer recalled that digital disconnection is a right of employees and that self-employed workers and companies cannot force their workers to be connected to their workplace after hours. “The worker cannot become the digital slave of the business.”

Furthermore, as San José assessed, although the penalty imposed on the company is proportional to the number of emails sent outside of working hours, if it is subsequently reported to the Labour Inspection, these can reach 7,500 euro. And if the existence of cyberbullying or workplace harassment of the worker is proven, it can reach the amount of 225,000 euro.

Finally, article 88 of Organic Law 3/2018 is the one that connects the right to digital disconnection in the workplace with the right to personal and family privacy. Thus, it establishes this disconnection for workers and public employees as a means to guarantee, outside of legal or conventionally established work time, respect for their rest time, permits, vacations, and their personal and family privacy.



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