The Spanish Data Protection Agency (AEPD) recently adopted a new Resolution pursuant to which a company can be fined if the employees’ conversations are recorded by their superiors, when they have not been informed about this beforehand.
This resolution highlights the need for a balance that must exist between the right of companies to be able to use different media, which is considered to be the most appropriate to supervise and control the employees to make sure they are complying with their work-related obligations and the employees’ right to their privacy and respect for their dignity.
Pursuant to the provisions established in both article 20.3 of the Workers Statute and article 89 of the Data Protection Law and the Guarantee of the Digital Rights, the company is allowed to record the conversations of the employees if it is to fulfil the supervision and control obligations of the employer, however, it is a right of the company that must be balanced against the employees’ rights to privacy and dignity.
In view of this, in order to assess the rights of the companies and the employees, which are at stake, if these voice recording systems have to be used, certain points must be taken into account, which include the following:
- That the recording media respects the principle of proportionality in the use of the measure taken.
- There is minimum intervention in the individual or private environment.
- They will be used when there are significant safety hazards associated with the facilities, assets and people resulting from the activity that is being carried out in the work place.
The aforesaid resolution from the AEPD reminds us that apart from the aforementioned requirements, to validate the use of this media, the legal representatives of the workers, if there are any, and the employees themselves have to be informed beforehand that these are being used and what the company is using them for.
Moreover and pursuant to the European regulations governing the protection of personal data, employees must also be informed about the following points:
- Who the data controller is.
- Identity and contact details of the data controller.
- The purposes, processing and the legal basis for this.
- Length of time that the personal data is kept (the voice recording in this case).
- The workers’ rights.
