The Spanish Central Labour Court has deemed abusive the inclusion of a clause in an employment contract that would allow the employer to make communications to its employees by means of SMS or email (Ruling of the Central Labour Court nº 13 dated 28th January 2014).
The Spanish Central Labour Court has issued a ruling resolving the labour dispute instigated by the Federation of Financial and Administrative Services Workers of "CCOO" Trade Union and "CGT" against a company in the Contact Center sector for including a clause in its employment contracts which allows the company to issue communications to its employees by means of SMS or email. Such a clause was deemed unfair and abusive by the Court.
In analyzing the clause, the Court determined that, in accordance with data protection legislation, the mobile phone number and email address of an employee are personal data.
The company, therefore, can only process and use this information either (a) with the express consent of the employee, or (b) without the consent of the employee in situations where such information is deemed essential to the maintenance or development of the employment relationship and therefore is covered by cases considered exceptional to the general rule requiring consent, as per Article 6.2 of the 15/1999 Data Protection Act.
In view of this, the inclusion of a clause with the following wording is deemed abusive by the Court: "Both parties expressly agree that any kind of communication regarding this contract, the employment relationship or the employee's position, can be sent to the employee by means of a SMS or an email, using a text message or an attachment, using the contact details provided by the employee. Any change or incident regarding said contact details must be formally and immediately communicated to the company ".
The Court based this conclusion on two arguments. On the one hand, the inclusion of this clause in the contract imposes on the employees the obligation to provide their personal data. On the other hand, the company was not able to prove that said data was necessary for the maintenance and development of the employment relationship, and therefore does not fall under the legal exception to the requirement of the employee's consent included in Article 6.2 of the Data Protection Act.
In conclusion, for the Court, the inclusion of this clause in an employment contract implies an imbalance between the obligations of the Parties towards the employment contract and an excessive use of the company's managerial powers.