Post by account_disabled on Mar 15, 2024 22:38:22 GMT -5
One of the most controversial topics addressed was the possibility of the employer carrying out hidden control of his employees." November 7, 2023 News, Law, Summaries And Proposals Fide On October 25, 2023, Fide held the session on «Cybercontrol of employees, from business power to obligation imposed by the State«, framed within the Criminal Law Forum. This session, moderated by Javier Sánchez-Vera Gómez-Trelles, partner at Oliva-Ayala Abogados, Professor of Criminal Law and Academic Advisor of Fide, focused on the analysis of the employer's role in controlling workers from a technological perspective, addressing labor and criminal issues. The judges participated as speakers. Miguel Ángel Encinar del Pozo, Lawyer of the Technical Office of the Criminal Chamber of the Supreme Court and Juan Manuel San Cristobal Villanueva, Director of the Technical Office of the Supreme Court. The session began with a reflection on the evolution of the role of the employer as supervisor of employees and how the technologies and criminal responsibility of legal entities have increased this control, taking it to what has been called the «transparent worker.
The fundamental role of technology in this control was highlighted, since digital tools have become an integral part of work in many companies, which has made these tools not only instruments of work, but also instruments of control. The importance was emphasized that companies establish codes of conduct that regulate the use of digital devices provided to workers, allowing limits to be established for supervision and control by the employer. However, it was mentioned that, currently, the casuistry plays an essential role in resolving these casos in Spain, which highlights the lack of a unified response on the part of the legislator and the courts. One of the most controversial topics addressed was the possibility for the businessman to carry out a hidden control of your BYB Directory employees. In this context, reference was made to the rulings of the European Court of Human Rights (ECHR) known as “Barbulescu I” and “Barbulescu II”, which have served as a reference for the Spanish courts for the purpose of resolving casos related to this topic. Additionally, the impact of the recent «Whistleblower Protection Law» (Law 2/2023) in the labor field, especially in relation to the presumption of nullity of any retaliation by the employer against a whistleblower, which provides additional tools to the courts to address these casos.
The conclusion reached is that, In the workplace, this matter is highly complex and it is presented as a field in constant evolution, where the Spanish courts offer answers caso by caso, without providing a unanimous solution to the issue of protection of both the worker and the employer in this context. It was explained, through the jurisprudence of the 2nd Chamber of the Supreme Court, the possibilities of control and supervision over the subordinate and how such control can be considered as a quasi-criminal instruction. Business cyber control was highlighted first and the idea of legitimacy and the conflict that arises between the powers of the employer and the rights of the employee, especially related to privacy and secrecy of communications to the extent that there is a personal, and not merely work or professional, use of the medium provided by the company. A confusion of use thus arises, because by controlling the to supervise the proper use of the productive means made available to the company's workers, a criterion that has been developed in subsequent resolutions such as SSTS of October 14, or of February.
The fundamental role of technology in this control was highlighted, since digital tools have become an integral part of work in many companies, which has made these tools not only instruments of work, but also instruments of control. The importance was emphasized that companies establish codes of conduct that regulate the use of digital devices provided to workers, allowing limits to be established for supervision and control by the employer. However, it was mentioned that, currently, the casuistry plays an essential role in resolving these casos in Spain, which highlights the lack of a unified response on the part of the legislator and the courts. One of the most controversial topics addressed was the possibility for the businessman to carry out a hidden control of your BYB Directory employees. In this context, reference was made to the rulings of the European Court of Human Rights (ECHR) known as “Barbulescu I” and “Barbulescu II”, which have served as a reference for the Spanish courts for the purpose of resolving casos related to this topic. Additionally, the impact of the recent «Whistleblower Protection Law» (Law 2/2023) in the labor field, especially in relation to the presumption of nullity of any retaliation by the employer against a whistleblower, which provides additional tools to the courts to address these casos.
The conclusion reached is that, In the workplace, this matter is highly complex and it is presented as a field in constant evolution, where the Spanish courts offer answers caso by caso, without providing a unanimous solution to the issue of protection of both the worker and the employer in this context. It was explained, through the jurisprudence of the 2nd Chamber of the Supreme Court, the possibilities of control and supervision over the subordinate and how such control can be considered as a quasi-criminal instruction. Business cyber control was highlighted first and the idea of legitimacy and the conflict that arises between the powers of the employer and the rights of the employee, especially related to privacy and secrecy of communications to the extent that there is a personal, and not merely work or professional, use of the medium provided by the company. A confusion of use thus arises, because by controlling the to supervise the proper use of the productive means made available to the company's workers, a criterion that has been developed in subsequent resolutions such as SSTS of October 14, or of February.