AN - 136/2019
| AN - 136/2019 | |
|---|---|
 | |
| Court: | AN (Spain) |
| Jurisdiction: | Spain |
| Relevant Law: | 20.3 Estatuto de los Trabajadores 5 LOPD |
| Decided: | 06.02.2019 |
| Published: | |
| Parties: | TELEPIZZA, S.A.U. |
| National Case Number/Name: | 136/2019 |
| European Case Law Identifier: | ECLI:ES:AN:2019:136 |
| Appeal from: | |
| Appeal to: | Appealed - Confirmed Tribunal Supremo STS 518/2021 |
| Original Language(s): | Spanish |
| Original Source: | CENDOJ (in Spanish) |
| Initial Contributor: | Teresa.lopez |
Spanish Audiencia Nacional invalidated contractual clauses obliging employees of a pizza delivery chain to supply their personal phones for geolocation purposes in updating customers about their delivery status.
English Summary
Facts
On November 26, 2018, a lawsuit was filed by UGT (Spanish trade union) regarding a collective labor conflict. Another lawsuit was filed on December 12, 2018, by CCOO (Spanish trade union) concerning the same collective labor conflict.
TELEPIZZA S.A.U., a pizza delivery chain, wanted to implement the "Proyecto Tracker" (Tracker Project), which required delivery drivers to provide their personal cell phones with internet connection for geolocation purposes during their working hours. Telepizza's purpose was to ensure that customers ordering their pizzas were aware of the status of their order at all times. The company argued that its main competitor, as well as other digital food delivery platforms, offered geolocation systems for orders, which made its implementation necessary to maintain a similar offer.
The Collective Agreement for cooked product manufacturers for home delivery did not regulate the requirement for workers to provide mobile phones. Telepizza initiated an amendment of working contracts to be signed by new employees to include the mandatory provision of personal devices and the installation of a company-developed app for this purpose. Employees would be responsible for activating the app at the beginning of their shift so geolocation would start, as well as for its deactivation at the end of the shift. The trade unions also complained about the app accessing the phone's gallery. In compensation, the employer was to pay a monthly amount that it determined unilaterally.
The repeated refusal or supervening impossibility of providing the personal phone by the employee was foreseen to be sufficient cause for the termination of the employment contract. The company explained that the acceptance of this system would be voluntary in the case of delivery drivers already contracted.
Holding
The Court declared the nullity of the "Tracker Project" as well as the nullity of the clauses introduced in the contracts that required the contribution of the cell phone with internet connection of the worker for the benefit of the company.
The Court considered that the information provided to the workers' representatives was insufficient to have an informed opinion since it omitted essential data. The Court held that it is necessary to explain the specific operation of the application, including how it is installed on the cell phone, what data of the terminal it must access, what specific data the worker must provide to access the application, what data, if any, the application must store and how they will be processed. Said information, along with the possibility to exercise the rights of access, rectification, limitation of processing, and erasure, must be provided to workers and their representatives prior to the installation of geolocation systems.
The Court also noted that even if there is a judicial doctrine admitting that employers may impose geolocation systems on workers, the implementation of such a measure must pass the proportionality test. Any limitations or modulations must be those indispensable and strictly necessary to satisfy a business interest worthy of protection. If there are other possibilities for satisfying this interest that are less aggressive and affect the right in question, those alternatives must be used.
The Court held that Telepizza's intended processing did not pass the necessary proportionality test. The same purpose could have been achieved with measures that involve less interference in the fundamental rights of employees, such as the implementation of geolocation systems in the motorcycles in which orders are transported or bracelets with such devices that do not imply the need for the employee to provide their own means and personal data.
Moreover, the Court asserted that the mandate for employees to provide a cell phone with a data connection for work purposes is a clear abuse of law. This requirement not only disregards the essential detachment of resources typically associated with the employment contract but also shifts the responsibility of providing necessary tools for work from the employer to the employee. Consequently, any hindrance in activating the geolocation system results in, at the very least, the suspension of the employment contract and subsequent loss of wages. Furthermore, the compensation offered for this provision is deemed entirely inadequate. The valuation of a basic mobile device, priced at 110 euros and expected to last three years, along with the internet data contract, which is reimbursed solely based on work-related usage, fails to account for whether the employee desires such services for personal use.
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English Machine Translation of the Decision
The decision below is a machine translation of the Spanish original. Please refer to the Spanish original for more details.
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