The Supreme Court of Justice of Andalusia, considered in the Judgement of October19, 2017 that the use of data obtained with the use of GPS installed in a company car to initiate disciplinary proceedings for a purpose other than its own, violated fundamental rights and the dismissal had to be declared void.
Instead, the Supreme Court allowed an appeal of a company that fired a worker for using the company car while on medical leave and outside of working hours.
In order to answer this question, the Court asks whether the control goes beyond the limits of the purpose assigned to the data collection system and whether, in this case, the excess implies an interference in the private area of the worker. The reasoning is contained in Article 3 a) LOPD 1999 which establishes that personal data is an information concerning identified or identifiable natural persons.
Does GPS collect personal data?
Location data is data that identifies individuals, and therefore, personal data. However, the purpose of the GPS is to ensure both the safety and the coordination of the work, and despite the fact that the geolocation of the vehicle is permanent, it does not have the capacity to extract any data related to the worker’s personal circumstances, as the Judgement considers.
In the same way, the judgement states that: “the private sphere of the employee is not interfered with, as this only affects the location and movement of the vehicle for which he was responsible and had to use in accordance with the contract’’.
Consequently, we cannot conclude that this control exceeds the purpose of the location device, since the company is responsible for the safety of the vehicle, both within the working hours and outside of working hours.
Why is the dismissal appropriate?
For this reason, the Court supports the use of GPS data as there are a number of requirements: the worker knew that the vehicle could not be used outside of working hours, that the car had a GPS and that it only records information related to the location and the movement of the vehicle. In this case, the dismissal has been declared appropriate.
Therefore, the company’s behavior is lawful and does not violate the worker’s right to privacy. It should be taken into account that the right to privacy is not absolute, article 20.3 of the Workers’ Statute establishes that the employer may adopt the surveillance and control measures that it deems appropriate to verify that the worker complies with his obligations.
Measure to be adopted for an appropriate use of the surveillance and control systems.
In short, in order to minimize the risk of violation of the right to privacy of workers, the company that wants to install a surveillance measure to control its employees must: first, clearly inform employees and be unambiguous with regard to the measure to be implied and its purpose (Art. 90 LOPDGDD).
It is important to comply with the obligation to inform as failure to do so may result in the dismissal being considered void. Second, prove that you have previously informed the employees what the internal rules of the company are, and finally, that this measure is proportional and fit for purpose, for this it will be necessary to analyse each case and assess whether the measure imposed by the employer justifies the processing.