Could AI decide you’re bad at your job? Spain’s rules on workplace monitoring

Spanish supermarket workers could face growing scrutiny as artificial intelligence finds its way into the workplace, raising questions about who is watching employees, how their performance is judged and whether a computer should help decide if someone deserves a disciplinary warning.

The issue has already surfaced in Australia, where a supermarket cashier with 30 years of experience reportedly received a final written warning after an AI monitoring system flagged errors on just 0.18 per cent of the products she scanned, around one mistake in every 533 items.  The case was raised by the Shop, Distributive and Allied Employees Association, an Australian retail workers’ union. For workers in Spain, the case raises a pressing question: could an employer use technology to monitor performance and take disciplinary action here, too?

What Spanish law says about AI monitoring workers

Employers in Spain already have the right to monitor whether staff are fulfilling their work obligations. But that power is not unlimited. Article 20.3 of the Workers’ Statute allows companies to introduce surveillance and control measures, provided they respect employees’ dignity and the legal limits governing their use. Spain’s data protection legislation also requires workers to be informed about workplace video surveillance and certain other monitoring measures. 

The rules become especially important when monitoring involves algorithms or AI systems that assess employees’ performance or influence decisions about their working conditions. Under Article 64.4.d of the Workers’ Statute, employee representatives have the right to receive information about the parameters, rules and instructions behind algorithms or AI systems that affect decisions about working conditions, access to employment or the continuation of employment, including profiling.  In other words, employers cannot simply treat the way these systems work as a secret when the technology affects workers’ rights.

Can a computer decide to discipline an employee?

Spanish workers also have protections against certain decisions made solely by automated systems. The Spanish Data Protection Agency (AEPD) explains that people generally have the right not to be subject to a decision based exclusively on automated processing when it produces legal effects or similarly significant consequences for them. This can include profiling that assesses a person’s performance at work. There are exceptions, including where automated processing is necessary for a contract or authorised by law. 

However, where the contractual or consent exceptions apply, safeguards must include the right to obtain human intervention, explain one’s position and challenge the decision. A system may flag a scanning error, but that does not automatically establish why it happened or whether a formal warning is justified. A human manager can consider the circumstances, including whether a mistake was caused by a faulty barcode, a product that would not scan properly or an issue beyond the employee’s control. An automated score may not tell the whole story.

AI surveillance is already a workplace concern

The debate extends beyond supermarket checkouts. Algorithms can influence shift allocation, task distribution, performance assessments and promotion decisions, while digital monitoring can track employees’ activity.  A report from Spain’s Observatory of Digital Rights sets out workers’ protections around privacy, monitoring tools and automated decision-making. 

It also stresses that workers’ representatives should be informed about relevant systems, including the data used and how the systems operate. The European Union’s AI Act also classifies many AI systems used for employment decisions, worker management and performance monitoring as high-risk, reflecting their potential impact on people’s livelihoods and fundamental rights. 

Could AI cost Spanish workers their jobs?

For Spanish employees, the concern is not whether businesses should be allowed to use technology to improve efficiency. It is whether workers can understand how they are being assessed and challenge decisions that could affect their jobs. The Australian cashier’s case offers a warning of what can happen when a performance figure becomes the focus of a disciplinary process. 

In Spain, existing employment and data protection rules provide safeguards, but workers’ ability to exercise those rights depends on transparency about the systems being used. For anyone whose job is increasingly measured by software, the key question is whether a computer is simply flagging a problem, or influencing a decision that could cost them their livelihood.