Article 20.3 of the Workers' Statute establishes that the employer may adopt the surveillance and control measures they deem most appropriate to verify the worker's compliance with their labor obligations and duties, maintaining in their adoption and application due consideration for their human dignity and taking into account the real capacity of disabled workers, where applicable.

This article has been interpreted in various judicial precedents to date, establishing a series of considerations regarding the general limits and scope of this employer's right.

This means that if an employer decides to exercise their right to control, limit, and even sanction workers for the abuse or misuse of company or external resources during work time—in this case, communication media such as email—we must keep the following general recommendations in mind:

• A document must be drafted that details which elements (computers, telephones, mobile phones, and communication/IT systems) are exclusively designated for work use, allowing no use for personal purposes during work time, and which ones may be used for personal purposes, if any.

• This must be brought to the attention of each worker, and they must sign to acknowledge receipt.

• If there are workers' representatives, they have the right to be consulted and to give their opinion on the document and the proposed measures, although the company has the final decision.

• The degree of control must be established in said document, including audits and their frequency, over the communication and IT systems (PC, email, chat, etc.) that workers may use in the performance of their work.

• Despite all this, an email or any type of communication that HAS NOT BEEN PREVIOUSLY OPENED BY THE RECIPIENT WORKER can NEVER be reviewed, opened, controlled, or used as grounds for sanction.

• Sanctions, in any case, must be proportional to the breach, its reiteration, its severity, and the degree of loss of trust the employer has in the worker who failed to comply with the established rules.

In summary, these are the general procedural guidelines that any employer must keep in mind when considering the effective control of work elements and communication systems, in order to allow for the validity of such controls when undertaking the complex task of sanctioning their workers for an abuse or improper use of the same.

In order for your company to be able to use as evidence, in a potential dismissal or legal proceeding, the improper use or use exceeding the scope of work by your workers during work time of electronic media (such as computers, mobile phones, chats like WhatsApp, web browsing, etc.), you must INFORM YOUR WORKERS INDIVIDUALLY OF A USAGE POLICY.

In the event that your company wishes to establish rules for the use of these media, we recommend that you provide us with a series of details, which we will use for two things:

1.  Send you a template document that each worker must sign. (Given that case law is changing, this document may vary, so we recommend redoing it even if this action has already been carried out in your company)

2. We will create an additional clause that we will include in future employment contracts your company prepares.

Use the following form: https://soporte.ifra-asesores.com/empresas/formularios/english-controlmedios