Can a boss check an employee’s WhatsApp on a company mobile phone?

Imagine the following case: an employee of a transport company is dismissed for charging extra commissions to her clients without the company’s knowledge. The facts were discovered by the company through the employee’s WhatsApp conversations on her work mobile phone. The situation raises a number of questions: is there a violation of the employee’s privacy, is the dismissal null and void, what are the limits of an employee’s privacy?

Companies often provide their employees with electronic devices such as mobile phones and computers for the performance of their duties. In these cases, two elements collide: the employer’s right to take surveillance and control measures (based on article 20.3 of the Workers’ Statute) and the fundamental rights of employees such as privacy, protection of personal data and secrecy of communications. Below, we analyse the limits of this issue

Can an employee’s company-issued mobile phone or computer be searched?

The High Court of Justice of Madrid has considered that reviewing WhatsApp conversations does not violate the employee’s privacy if the contract specifies that the mobile phone is only for professional use.

In relation to this issue, the Supreme Court and the Constitutional Court consider that the company can monitor and control the employee’s computer tools to verify that he or she is fulfilling his or her work obligations, but with the following limits:

• There must be a need and it is essential to reduce the data to which the company has access.
• Employees must be informed that the activity they carry out with work tools provided by the employer, such as mobile phones or computers, can be monitored by considering codes of ethics that are known to the employees.

In these cases, the employee’s consent is not necessary, but if the requirements we have seen are not met, the company can be sanctioned and the employee could claim in court for the violation of his privacy.

Therefore, the employee may use his or her work mobile phone for personal matters, provided that he or she is not engaging in criminal conduct or conduct that is against the law.

Can the company place cameras on its premises?

The answer is yes, but an information notice must be displayed in a visible place stating who is responsible for the processing of personal data and the purpose of the processing. The images collected by the cameras could be used as evidence by the employer in cases of sanctions or dismissal of workers. However, cameras may not be placed in rest areas, toilets or changing rooms.

In short, it is essential to strike a balance between the company’s need for control and surveillance and the privacy of employees when using information from electronic tools that are made available to a company’s staff. If you have any doubts or need help: contact us and we will study your case.

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