The incorporation of new technologies, without going any further after the new technological and computer innovations that have been seen in the MWC (mobile world Congres) held annually in the city of Barcelona, emphasize the management and control of time and the spaces in our companies. That which would only have a positive vision clashes frontally with the concurrent objective that can be obtained as is the control of the workers, their movements and displacements; However, these technological advances have caused our courts to have to demonstrate about the collision that causes control through various devices and the rights on the privacy of the worker and the secrecy of communications.
In this sense it is common that gadgets like the classic GPS or the most modern location controls generate this type of controversy and we find ourselves with an instrument at the service of business efficiency that can serve as a control mechanism for workers. The activities in which this technique of employee control can be used, which allows not only to control at all times where the worker is located, but also to know what they are doing, are activities related primarily to transportation in all its areas: police, parcels, ambulances, commercial, etc., being able to control at all times where it is going and the purposes with which it uses the business vehicle, as well as the time they invest in each “operation” fact that could be used to establish a standard of optimal work from which later we could identify a decrease in the performance of normal or agreed work.
Before this we must distinguish two types of monitoring and control elements. The first, which is followed by the technological element can be seen as a form of video surveillance for those cases in which the provision of the service is mobile, providing the employer control over the use of instruments and assets of the company that were delivered to the worker and this must be carried on top (app on a mobile phone, laptop, tablet, GPS, etc. The second would be that the control and tracking element is incorporated in the vehicle or means of transport. In this case the means of transport does not follow the worker, since the worker can be stationed in a certain place and the worker can walk without being connected to the employer’s surveillance.
A first idea about the incorporation of GPS as business control, is that it must have as objective and purpose to investigate whether or not the work entrusted has been done, not being able, in principle, to carry out a control over the person of the worker. That is to say, the element of follow-up as a machine that controls a machine (car / truck / mobile), we could not ask ourselves more questions; the problem is whether the control is carried out on the person of the worker, then we can incur the intrusion into the worker’s privacy.
To avoid this type of conflict, the best solution is to regulate it through a collective agreement, and failing that, it is advisable to regulate it by setting a protocol of action decided by the employer and informing workers that there will be control through what means and what measures will be adopted for the effective employment of the medium.
Thus, the most convenient thing to do is to have the rules of the game, the action framework, the uses and functions, and the information provided by the monitoring element as well as the responsibility of the worker in the maintenance of the systems for the good functioning of these means of control, all notified to the worker.
The Courts have made it clear that the company can control the compliance of the day. However, in the same way that control mechanisms can be used, it is obliged, at least, to indicate with precision and clarity to its workers what they must accomplish, especially when the day does not take place in the usual way . Thus, anyone who claims to demand strict compliance must apply the same strict criteria to communicate and inform what must be accomplished, in all its aspects. Also pointing out our Courts, what is not admissible is that the employer applies a double criterion to measure: one strict to demand compliance, and another lax to report obligations.
In the case of a vehicle for professional use, I understand that no objection can oppose such a surveillance system, which would find perfect protection in art. 20.3 of the ET. Control of kilometers traveled, driving times, stops, etc., are not more than incidents of the provision of work that the employer can lawfully claim to know in order to ensure the proper compliance with labor obligations. However, it must be borne in mind that the collection and storage of data relating to driving will be subject to the requirements of data protection legislation, although GPS does not provide confidential or confidential data, but it does provide data that can be protected in accordance with provided in the Organic Law on Data Protection (LOPD), as identifying the geographical position of a particular worker. Thus, the employer is obliged before the installation and subsequent operation of the GPS system, to the obligations established in said Law, proof of which is in report 193/2008 of the AEPD, which prescribes the necessary knowledge that must exist on the part of of the worker before the technological mechanism is implemented, and while it is used by the company, since said agency indicates that it is required that the controlled subjects know at all times that they are being monitored, that their driving and location data will be collected and stored, and therefore, will have the recognition of rights of access, rectification and cancellation of the information treated and the prohibition that they be preserved beyond the time during which they are necessary for the lawful purpose for which they were collected.
We can conclude that the devices and means of geolocation as a business control mechanism, if it is used in an unlimited way, would result in a total, permanent, indiscriminate and absolute surveillance of the services provided by the worker throughout his day, including breaks at work, affecting in this case the right to privacy.
In conclusion, the employer should be cautious, what should be controlled is compliance with the work entrusted and not the behavior of the worker which would violate the worker’s right to privacy and privacy, and any disciplinary action on these, could be declared as a transgressor of a Constitutional right.