If the question is whether they can geolocate you during your work day and use it to fire you, justice leaves no doubt: yes
Know that your company knows where are you every minute of your workday can generate discomfort and even doubts about its legality. However, the courts have been clarifying this area for some time. A recent ruling by the Superior Court of Justice of Asturias does so with unusual forcefulness. The case involves an elevator maintenance technician and an application time control which recorded, in addition to his schedule, the exact point from which he clocked in. What seemed like a routine tool ended up becoming the key to a disciplinary dismissal which today is fully validated by justice. Schedule control with advanced features. As detailed in the sentence issued by the Social Chamber of the Superior Court of Justice of Asturias, a maintenance employee of an elevator company used a time control application installed on the corporate mobile. His function was simple: mark the beginning and end of his day and do it from the place where he attended to each incident. The company distributed the routes on a daily basis and registration had to be done at the customer’s location, not from another point. However, the employee’s workday began to show strange patterns. In one month, the company detected up to 11 outbound signings made from the employee’s home and coinciding with work hours. The record indicated that, instead of closing his last intervention from the customer’s location, the technician finished his day on time, but already at home. Notices, warnings… and a disciplinary dismissal. The company did not act immediately. Before the dismissal, he issued several internal warnings to the worker and reminded him of the operation of the application, pointing out the irregularities detected and reminding him the obligation to sign from each real location. Even so, the signings from home continued, so the company interpreted that the agreed working day was being breached. Finally, he proceeded to the disciplinary dismissal, considering it proven that the technician ended his day prematurely and from a place outside the workplace. The Social Chamber of the TSJA confirmed the decision of disciplinary dismissal and validated the use of geolocation as evidence. What the law says. The TSJA ruling is based on the article 20.3 of the Workers’ Statutewhich specifies “the employer may adopt the surveillance and control measures he deems most appropriate to verify compliance by the worker with his or her work obligations and duties.” Therefore, and given the mobility nature of the position, the time control system with geolocation was justified. In addition, Organic Law 3/2018 on Data Protection (LOPDGDD) specifically regulates geolocation systems. Your article 90 requires clear information about the existence of these systems, their purpose, the scope of the processing and data protection rights. In this case, the app was corporate, the device belonged to the company, the worker knew how it worked, and the application only recorded the location when the application was opened. Taking all these regulations into account, the TSJA considered that the company acted within the law and used a proportional tool, linked to strictly labor purposes and correctly communicated to the employee. Time nuances. He Workers Statute It also precisely delimits when the day begins and ends. Article 34.5 establishes that “working time will be calculated so that both at the beginning and at the end of the daily shift the worker is at his or her workplace.” This is where we have to differentiate workplace and job position. It is not a minor nuance: effective working time begins when one is operationally available to perform the assigned functions. This does not mean that the employee must arrive at the workplace at the agreed time, but rather that he must be at his workplace at that time. If there are 10 minutes from the company entrance to your position and you arrive at the work center at your agreed time, you would be arriving 10 minutes late. The same applies at departure time. That employee must remain at his position until the agreed time, and then collect his things and leave the company. If you are leaving the company premises at the agreed time at the end of the day, you would be leaving 10 minutes early. The only exception to the rule: there is no job to go to. The Supreme Court has recognized a relevant exception: When the company does not have offices, premises or any physical space where workers can start their day, the employee’s home can be considered a valid starting point for the day. This doctrine applies especially to completely decentralized companies whose workers only move from client to client. In these situations (well accredited and exceptional), the travel time from home to the first client can be counted as workbecause the home assumes the function of the only available operating point. But as long as there is a work center or a clearly defined place where the activity can begin, this exception does not apply. Clocking in from home, as in the case of the Asturias elevator technician, is not justified and is a non-compliance with working hours. In Xataka | Breakfast and the first 15 minutes of entry are work: the Supreme Court sets the limits of time control Image | Unsplash (Kevin Grieve)
