Spanish court rules against obliging delivery drivers to provide geolocation from their personal mobile phones and personal internet connection.
The Social Chamber of the Supreme Court in Spain has confirmed a decision nullifying Telepizza SAU’s ‘Tracker Project.’ This project included mandatory employee location tracking for delivery drivers, facilitated through their personal phones’ geolocation feature, with negative repercussions for system issues, which if not repaired by a deadline, put employees at risk of suspension of their contract, loss of salary, and even loss of employment. This Supreme Court ruling confirmed a ruling of a National Court which established that delivery drivers for Telepizza are not required to use their own mobile phones and installed geolocation app while working. The Chamber believes that the use, by the workers of their mobile phones differs greatly from these conditions being required using a company provided phone, as the latter would not risk violating employee rights.
The court found that this system established by the company violated their employees’ privacy rights.
The pizza restaurant, which operates mainly in Spain and Portugal, was denied their case appeal in this ruling, based on the fact that this type of policy violated the privacy rights of those affected, when less intrusive measures could have been used. The company’s Tracker Project forced employees to provide a personal mobile phone with a working internet connection in order to facilitate tracking of their live location, and by extension, deliveries. It was also concluded that the workers had not been given sufficient information, and as such, the implementation of the Tracker Project failed to comply with the requirements for information and prior consultation, as established in Article 64.5 of the Workers’ Statute.
“One should not forget that employees are also data subjects whose data should be processed in compliance with the GDPR. In this case the company should have undertaken a Data Protection Impact Assessment in order to identify the risks linked to this practice and the mitigation measures that should have been applied before implementing it” comments Cristina Contero Almagro, Aphaia’s Partner.
The Court is of the view that there are less invasive ways of achieving success with tracking.
The pizza delivery company argued that their system would simply allow clients to locate their order in real time. However, the Supreme Court is not taking to task the necessity or advantage in customers being able to track their orders, but rather highlighting that the methods used by the defendant to achieve this are not in accordance with the law. In addition, from a fundamental rights perspective, the company’s methods show flaws, not in proportionality, but in necessity, as there are other, less invasive means of achieving that functionality within their business. The court also ruled that the compensation plan intended for employees, for using their personal phone and internet connection was insufficient. In general, a more appropriate policy would have been to furnish drivers with an employer-provided phone for tracking purposes.
