As a result of the progress of technology, companies can access sensitive information such as political opinions, sex, sexual orientation or religion based on statistics according to the place of residence, information consumption and online reputation. According to Adrián Todolí, processing these data by algorithms can create inequalities. For example, it mentions the selection of people from the boards of directors in IBEX 35companies. Since currently 9 out of 10 of these jobs are occupied by men, it is “more likely” that the algorithm considers that a man fits better than a woman, because data statistically “confirm” so, among other examples.

Adrián Todolí, also assistant professor of Labour and Social Security Law and co-director of the Chair of Collaborative Economics and Digital Transformation, emphasises that the development of data processing technology and the possibilities of Big Data and its application in business decision making is a complex paradigm in labour relations. These decisions, more or less automated, range from the screening of candidates in the selection process up to their firing, as well as the promotion or salary increase. According to Todolí, there is a growing concern that data processing and decision-making by an algorithm to replace human beings may end in discrimination that violates fundamental rights.

Collective governance implies completing the current legislation on data protection with the figure of representatives of employed personnel or unions to negotiate safeguards in data processing and avoid the individual’s defences against decisions based on the processing of information by algorithms, or directly taken by them.

In addition, to avoid these possible discriminations there must be a right to an explanation. That is, based on the fact that technology may access sensitive information and take automatic decisions from these, the person employed must know how and why the decision has been made to be able to oppose or plead what he or she deems appropriate.

According to Todolí, the existing regulation on data protection has a fundamentally individualistic nature that leaves the worker in a situation of helplessness against the company and allows employers to regulate data protection safeguards unilaterally. The proposal of collective governance would allow to inspect the use of data from a more privileged position together with the representatives of the personnel employed.

Article:

Adrián Todolí Signes: «La Gobernanza colectiva de la protección de datos en las relaciones laborales: Big Data, creación de perfiles, decisions empresariales automatizadas y los derechos coletivos». Revista de Derecho Social. Num. 84, 2018, pp. 69-88.