Failure to respect the digital disconnection of employees can be a reason for sanction by the labor authority. Even for harassment of staff. The Labor Inspectorate has urged the security company Prosegur to stop making calls and sending emails to its workers outside of their working hours, following a complaint filed by ADN Sindical en Catalunya, as Global Chronicle advanced. The union has released a communication from the Inspection in which it informs them of the “extension of the infraction act” to the company, with a proposal to punish personnel for harassment, but Prosegur sources insist to elDiario.es that it is of an “error” and that they have only been issued a warning to comply with this point, “but there is no record of violation.”
The right to digital disconnection does not take off: it is only in 11% of the labor agreements signed this year
The union DNA section denounced at the end of December 2019 that Prosegur sent emails and made phone calls to workers outside of their working hours, which in their opinion violated the right to digital disconnection, reflected in the Data Protection Law of 2018 in its article 88, and the right to reconcile your family and work life and privacy.
The union included in its letter that the legal representation of the workers had asked Prosegur to draw up an internal protocol for digital disconnection, with the use that new technologies should have, but that the company had not responded. In addition, he denounced that workers answered calls and responded to emails “for fear of reprisals” and “a negative impact on their incentive systems.”
The inspector’s report to the complainants, who has consulted elDiario.es, states that Prosegur provided documents signed at the beginning of the employment relationship of each worker in which it appears that “the telephone number that it makes available to the workers, the use of the It must be done ‘exclusively’ during working hours by both parties “.
You are exposed to a fine for harassment
The Labor Inspectorate indicates that “the company has been issued a warning report for the purposes of compliance with such exclusive use throughout the employment relationship of the telephones during working hours. Failure to comply with this digital disconnection violates the “rights of workers to privacy in relation to the digital environment and to disconnection” (article 20 bis of the Workers’ Statute) and article 87 and 88 of Organic Law 3/2018, of Data Protection.
Then, the communication of the Inspection states that these breaches give rise “to the extension of the ACT OF INFRINGEMENT with the consequent proposal of sanction, typified and classified as very serious in article 8,13 and 8,13-bis of the Royal Decree Legislative 5/2000, of August 4, which approves the Consolidated Text of the Law on Violations and Sanctions in the Order (BOE of 8) “. This article refers to harassment in the workplace.
Prosegur sources assure elDiario.es that “there is an error in the document and the company is in contact with the Inspection to solve it”, because they insist that the Inspection has only warned the security company of its obligation to respect the labor disconnection, “but there is no act of violation.” In any case, the Inspection requires the company to only use the telephones during working hours. “The intention of the company is always to comply with the law, of course”, they affirm in Prosegur.
Ana Ercoreca, president of the Union of Labor and Social Security Inspectors (SITSS), recalls that when the Labor Inspection detects a violation of labor legislation, there are occasions when it opens a requirement for the company to comply with the law instead to directly impose a sanction. Other times, the sanctioning procedure is chosen, depending on the circumstances of the case.
Ercoreca points out that the penalty that would correspond to the harassment offense referred to in the inspector’s report in this case in his writing amounts to fines of between “6,251 euros and 187,515 euros in its maximum degree.” The inspector recalls that infractions related to digital disconnection can also imply “non-compliance with rest” of the worker or violate the “prevention of occupational risks”, since abuses on the availability of employees can generate “stress or the syndrome of the burned worker, which is not considered an occupational disease, but some sentences have already considered it a work accident “.