Pérez-Llorca analyses the latest developments and the implementation of the new European Data Protection regulation in relation to Labour matters

As is customary, Daniel Cifuentes opened the session with a review of the current labour law environment by summarising twenty of the most significant rulings handed down recently by the Supreme Court and the National High Court. He added that no major legislative changes on labour matters are anticipated before the adoption of the Finance Law.

Fernando Ruiz then spoke of the importance of the judgment handed down by the European Court of Human Rights on 5 September that, revoking its previous decision, clarifies the requirements for evaluating the legality of monitoring employee communications.

The European Court, like the Supreme Court, adopts the concept of the “proportionality test” and limits access considerably compared to the approach taken in the first instance. Ruiz reminded attendees of the need to inform workers in advance, since there should be no expectation of privacy, recommended reviewing companies’ “codes of use of computer systems” and emphasised the importance of ensuring that monitoring is justified and proportional, considered and balanced in terms of the aim pursued.

In addition, the Labour law partners highlighted the judgments of the Supreme Court of 3 May, which declared that health insurance premiums and pension plans count for the purposes of severance pay (thus ending the debate on these benefits), and of 14 July, which established that the termination of all contracts in a workplace with greater than 5 and fewer than 20 workers does not constitute a collective dismissal as long as the thresholds set out in Article 51 of the Workers’ Statute are not exceeded.

Natalia Martos and Sara de Román then discussed the impact of the new European Union General Data Protection Regulation on the employment relationship between companies and their workers.

They paid special attention to Opinion 2/2017 of the Art. 29 WP on data processing at work, and stressed the importance of having a legitimate interest, since the worker’s consent is not considered sufficient as it could be flawed due to the very nature of the employment relationship.

Lastly, they described the figure of the Data Protection Officer, which was introduced by this regulation, and emphasised that they must be independent and autonomous, and cannot receive orders or be disciplined when carrying out their duties. Martos and de Román felt that this new figure should be regarded as an ally rather than an enemy, and that they will help change the way companies think.

The session ended with a round of questions from the audience who were particularly interested in the figure of the Data Protection Officer.