The company sends emails and messages outside of established working hours, although without requesting an immediate response.

The appeal 5647/2023, filed by the legal representation of the worker, Mr. Valeriano, against sentence No. 357/23 issued by the Social Court No. 4 of Vigo is resolved,procedure for recognition of rights and protection of fundamental rights (privacy and data protection), cars no. 517/23.

Mr. Valeriano, served as a security guard He demanded that the company recognize his right to digital disconnection, requesting compensation of 7,551 euros for violation of his right to data protection and privacy, in accordance with the State Collective Agreement of Private Security Companies.

Mr. Valeriano's team coordinator sent him emails outside of your working hours on various dates and for different reasons, including one with instructions for taking a training course. He also received WhatsApp messages from the academy where he was taking a course on defense techniques.None of the emails received requested an immediate response.

D. Valerian had requested to make effective his right to digital disconnection, authorizing the company only as a member of the provincial union section for any communication to its mobile number and personal email, exclusively for its representation functions.

The Fiscal Ministry presented a document stating that the lawsuit did not show violation of a fundamental right that justified his intervention, since the litigation focused on discrepancies regarding the worker's right to digital disconnection and the interpretation of the agreement.

The lower court ruling dismissed the claim and absolved the company of all claims made.Argument that the right to digital disconnection had not been violated, given that there was no obligation to read or respond to the emails outside the worker's usual hours. Regarding the violation of data protection law, it clarified that the emails in question were sent with a blind copy, not revealing the plaintiff's email address to other recipients. Therefore, it resolved considering that no compensation was appropriate.

The plaintiff's legal representation filed a petition denouncing legal violations, specifically from article 20 bis of the ET, article 88 of Organic Law 3/2018 of December 5, on the protection of personal data and guarantee of digital rights and article 57 of the state collective agreement of private security companies. Mr. Valeriano alleged that he had informed the company of his desire to make the digital disconnection effective, but the company continued sending him orders to his email and calling him on his home phone, in addition to sharing his number with third parties. He considered that both the ET and law 8/2018 and the application agreement recognize the right to digital disconnection, which implies the company's duty not to contact the worker and the worker's right not to respond to such communications.

Secondly, it is important to highlight that the plaintiff was not limited to requesting that the company recognize his right to digital disconnection. In reality, what he intended was for the ruling to declare that said right had not been respected, as he considered it to be. In the appeal he also requested compensation for damages, arguing that the company, in addition to not respecting their request for digital disconnection, violated fundamental rights, the right to privacy in its manifestation of digital disconnection.

The Superior Court of Justice of Galicia considers the claim y revokes the sentence of instance. It points out that according to the provisions of Organic Law 3/2018 art. 88,”"Not only is it the worker's right not to respond to work communications outside of working time, it is a business duty to guarantee this disconnection." Therefore,The company has the duty to guarantee digital disconnection outside the worker's hours. Furthermore, according to art. 57 of the CC of private security companies, except in an emergency situation, neither telephone calls nor emails will be made beyond working hours. The Room recognized the violation of the right to digital disconnection, but due to the low number of emails outside of his working hours, he set the sentence of 300 euros.

Besides, the courtstood out that article 18.4 of the Spanish Constitution and article 8 of the Charter of Fundamental Rights of the European Union protect the right to privacy and personal data. The actor received emails and WhatsApp messages from external companies (training and prevention services) without his express consent, violating his right to data protection. Therefore, the Court considered that had violated the actor's right to data protection by imposing a sentence of 700 euros.