Restrictions in the Workplace
In Spain, there is no express legal prohibition for employees not to use social media at the workplace. Such a prohibition can be regulated by the employer by written form, with a detailed policy on surveillance and control of the company’s property and the use of social media tools during working hours. Although there is no need to seek approval with the employees’ representatives to implement or negotiate such policies, some companies choose to negotiate directly with these representative bodies, before communicating such policies to the individual employees.
Therefore, if the employer considers the particular use of multimedia contents by its employees detrimental to the company’s activities, the employer may within its responsibilities, issue the appropriate guidelines and instructions to regulate the use of these tools and seek greater productive capacity from the employees, and even prohibit the use of social media at the work place. Thus, the measures used by the employer will be assessed according to the principle of proportionality meaning the measures to control the employee at the workplace have to be justified, appropriate, necessary and balanced.
Can the employer monitor, access, review the employee’s electronic communications?
Spanish law recognises the employer’s right to take the most appropriate measures to control the work of their employees, so as long as they do not violate their fundamental rights. Case law of the European Court of Human Rights and Spanish Courts have established that when the electronic communication systems used by employees are owned by the company, and therefore susceptible to being considered as work instruments and tools, they may be subject to the employer’s control. However, for the monitoring of the electronic communications to be valid, the employer must comply with the following:
- establish guidelines on the use of these media, and inform the employees that the use of such devices is limited to professional tasks; and
- warn or notify employees, in advance, of the possibility to control and monitor their electronic devices and the possibility to penalise them for improper use.
Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information
Without clear policies, it can be difficult to lawfully sanction employees for misuse of social media. It is important to have a social media policy implemented by the employer and communicated to the employees, in order to control the use of company resources and tools. Also, some courts in first instance consider it necessary to include in such a policy, that it may be used for disciplinary reasons against the employee. The company will be entitled to enforce the policy and sanction the employee whenever breached. For example, the dismissal of the employee to be fair, because of the company’s code of conduct, which explicitly permitted disciplinary measures for offensive or defamatory remarks made by employees against the company.