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Video surveillance evidence in dismissal proceedings:
Article 20 of the Workers' Statute provides that employers may adopt such monitoring and control measures as they consider appropriate to verify employees' compliance with their employment obligations and duties, provided that such measures are necessary for the proper conduct of business operations and respect workers' right to privacy.
Written by Josep Conesa
Employment and insolvency lawyer
This provision is clearly addressed within the administrative law jurisdiction in the ruling of the Supreme Court, Third Chamber (Administrative Division), Section 4, no. 557/2021, of 26 April 2021, Appeal no. 4645/2019, which upheld the position of a public authority that used surveillance cameras to discipline employees, even though staff had not been specifically informed of that possibility.
There is no specific legislation governing the installation and use of monitoring and control systems involving image capture or sound recording in the workplace, and it has therefore fallen to the courts to determine, on a case-by-case basis, the circumstances in which such use by an employer may be considered lawful.
European Court of Human Rights, Cases 1874/13 and 8567/13, López Ribalda and Others v. Spain, 9 January 2018
In the López Ribalda case, the Court held that the dismissal was justified, but awarded damages on the grounds that the surveillance had been carried out in an unlawful manner.
The European Court of Human Rights has taken a further step in reinforcing the protection of workers' right to privacy.
In the ruling López Ribalda and Others v. Spain, the Court upheld the dismissal carried out by Mercadona, but ordered the company to pay €4,000 in damages and approximately €500 in costs for violation of the workers' right to privacy.
The employees had been acting in coordination with customers to scan and charge for supermarket products and then reverse the transactions. The company installed visible cameras, but also fitted concealed cameras that recorded continuously.
The Court, in line with the employment tribunal of Granollers and the High Court of Justice of Catalonia, found the dismissal to be justified. However, it held that continuous surveillance by means of hidden cameras breaches data protection legislation and, consequently, the right to privacy, and that the company must therefore compensate the workers, even though the dismissal itself was lawful.
It remains to be seen how domestic courts will respond to this ruling, though it is likely that they will increasingly find that footage obtained through hidden cameras may be unlawful.
In our view, it is now essential to seek expert legal advice before installing any cameras, as only in this way can an employer assess in advance whether such recording would infringe fundamental rights.
Moreover, having the installation and monitoring carried out by a licensed private detective will provide considerably stronger guarantees in any proceedings, as the detective may also serve as an expert witness.
Should you have any questions on this matter, please do not hesitate to contact our employment law specialists.
You can download the ruling at the following link:
SURVEILLANCE CAMERAS AND fair dismissal FOR THEFT
WHEN CAN I INSTALL CAMERAS IN THE WORKPLACE:
According to established case law, the use of audiovisual monitoring systems is lawful where it relates to work activity and the workstation itself, but not where cameras are installed in areas intended for personal use, even if those areas are located within the workplace.
THE CASE OF THE employee WHO ENGAGED IN SELF-GRATIFICATION AT THE MUSEUM:
This is the case addressed in the ruling of the High Court of Justice of Galicia (Social Chamber), dated 20 March 2002, in which the covert recording of a museum security guard during a night shift was found to be unlawful. The guard had neglected his duties, used the computer for personal purposes, engaged in acts of self-gratification, settled into an armchair in a drowsy state, and was not wearing the official uniform. These events were captured by surveillance cameras inside a room containing only office supplies, used as a rest or relaxation area.
The employee argues that the grounds for dismissal invoked by the company stem from the capture and recording of images that failed to respect his dignity and were not justified by security reasons or the need for greater protection of the assets under surveillance. The employee's conduct does constitute a breach, as he failed to fulfil the duties inherent in his security role, neglecting his responsibilities during rest periods or while using the computer, notwithstanding the particular level of attentiveness required by the nature of a security guard's functions.
The Court considers that dismissal, as decided by the company, is not the most appropriate sanction for the claimant's breach. The conduct attributed to the employee does not amount to a complete abandonment of his duties: he was simply resting, not sleeping, and was therefore in a position to respond to any incident arising in the course of his duties. The same reasoning applies to the period during which he was using the computer.
The right to privacy , as an expression of the inherent dignity of the person recognised under Article 10 of the Spanish Constitution, entails the existence of a personal and protected sphere shielded from the scrutiny and interference of others, necessary, according to the standards of our society, to maintain a minimum quality of human life. The right to privacy is not absolute, no fundamental right is, and may yield to constitutionally significant interests, provided that any limitation is shown to be necessary to achieve a legitimate aim, proportionate to that aim, and, in any event, respectful of the essential content of the right.
THE CASE OF THE employee ALLEGED TO HAVE BEEN DEALING DRUGS ON THE company'S PREMISES:
In the ruling of 14 September 2002, the High Court of Justice of Madrid found it not proven that the employee in question had been caught dealing drugs on the company's premises during working hours. The only established fact was that on that day the claimant and a colleague were observed, via cameras installed on the company's premises, in a rest area set apart and reserved for workers and cleaning staff, handling a substance, heating it with a lighter and cutting it, without it having been sufficiently established that the claimant had received a sum of money from the said colleague in exchange for handing over a portion of that substance.
In doing so, the Supreme Court upholds the first-instance ruling, which declares the dismissal null and void on the grounds that it had been carried out in breach of the fundamental right enshrined in Article 18 of the Spanish Constitution, the right to honour, personal privacy, and one's own image.
THE CASINO CROUPIER CASE AND THE RECORDED CONVERSATIONS:
One of the most significant rulings is the ruling of 25 January 1996, handed down by the High Court of Justice of Galicia.
The court of first instance found that the company had violated employees' fundamental right to privacy by installing microphones in certain areas of the casino, and accordingly declared the measure unlawful.
The High Court of Justice, however, ultimately considered the installation of microphones at two specific workstations within a casino to constitute legitimate employer monitoring and surveillance measures, given their purpose of overseeing roulette play and cash desk transactions. These are locations where disputes or issues may arise that require knowledge of the conversations held in order to be properly resolved. The measure was therefore a work-related security measure, installed in areas that form part of the company's own working environment, and as such, there could be no suggestion of any intention to violate employees' privacy.
THE CASE OF THE COOK WHO WAS HELPING HIMSELF TO CUSTOMERS' FOOD TRAYS
In other cases, surveillance measures may be installed to investigate a well-founded suspicion of fraudulent conduct by an employee. This was the situation in the ruling of 20 October 1998, issued by the High Court of Justice of Murcia, which upheld the dismissal of a worker who had habitually consumed products available for sale in her department at various points during her working hours, without paying for them.
The worker's role involved selling ready-made dishes prepared in a kitchen located on a different floor of the building. The food was arranged on trays and transported to her department, and there is no evidence that she was required to taste the products in order to check whether they were in a satisfactory condition.
The company noticed empty food containers in the rubbish from the ready meals department, and consequently instructed the security manager to install a camera inside the department's stockroom to carry out surveillance. The footage obtained implicated the employee, who had been consuming food products intended for sale to the public on a daily basis.
The legitimacy of employer surveillance and monitoring measures is determined by factors such as: breach of contractual good faith, proportionality of the measure, and respect for the employee's right to privacy, including more specific criteria such as whether CCTV cameras are located in work areas or rest areas.
THE CASE OF THE SECURITY GUARD WHO KNEW THAT SECURITY CAMERAS WERE INSTALLED ON THE PREMISES:
The ruling of the Supreme Court, dated 21 July 2021 establishes that if the employee is aware that a video surveillance system is in place, the company may use the footage to justify dismissal. The use of CCTV footage by the company does not infringe the right to privacy and is proportionate, given that the burden of proof rests with the employer. In other words, it is not necessary to have informed the employee that such footage may be used against them; moreover, footage obtained by a subcontracted third party may also be used to prove the facts justifying the dismissal.
It is therefore important to comply with the principle of proportionality, ensuring that the evidence does not infringe the employee's right to privacy. Video surveillance does not in itself infringe that right. What may constitute an infringement is the recording of aspects of the employee's private life.
The case of the domestic worker who attempted to open the safe
THE CASE OF THE BUS DRIVER WHO ALLOWED A PASSENGER TO TRAVEL WITHOUT PAYING, ALONG WITH OTHER MISCONDUCT:
"INCIDENTS ON 2 JUNE 2017: At 20:22, he allows a passenger to board the bus without having purchased a valid ticket, with whom he begins a conversation at 20:27; at 20:31 he smokes inside the bus; at 20:32 he allows the passenger to remain inside the bus during the stop at the terminus; between 20:32 and 20:33 he makes physical contact with her (kissing her on the lips, embracing her, groping her and slapping her on the buttocks), while continuing to smoke; at 20:35 he occupies a passenger seat and sits with the passenger; at 20:37, after the terminus stop has ended, he begins a new leg of the route and allows the passenger to travel without having purchased a valid ticket, while continuing to smoke.
- INCIDENTS ON 27 JUNE 2017:
From 14:27 to 14:38 he smokes inside the bus; from 14:50 to 15:07 he converses with a passenger while driving; at 16:42 he is smoking inside the bus. At 18:27 a passenger boards the bus without having purchased any ticket. From 18:38 to 18:45 he converses with this passenger while the bus is in motion; at 18:46 he makes physical contact with her (groping her) while smoking, immediately after which he proceeds to urinate from inside the bus; he continues smoking and makes further physical contact with the passenger at 18:48 (groping and slapping her on the buttocks); he continues making physical contact with her at 18:53 (embracing and groping her) and at 18:56 (groping and embracing her); the passenger remains inside the bus during the terminus stop, with the next leg of the route resuming at 19:04, the passenger still on board and allowed to travel without purchasing any ticket; he continues conversing with her while on route from 19:10 to 19:28.
- INCIDENTS ON 28 JUNE 2017:
From 14:27 to 14:33 he smokes inside the bus; at 16:11 he converses with a passenger while in motion; at 18:30 he allows a passenger to board the bus without purchasing a valid ticket; from 18:48 onwards he smokes inside the bus; he allows the passenger to remain on the bus while stationary at the terminus and subsequently makes physical contact
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CASE LAW
with her (groping, caressing and slapping her on the buttocks); he continues smoking at 18:57; at 19:01 he urinates from inside the bus; he resumes the route at 19:03 with the passenger who remained at the terminus, allowing her to travel without paying any fare.
- INCIDENTS ON 29 JUNE 2017:
At 18:32 he allows a passenger to board without purchasing a valid ticket, conversing with her while driving until 18:57; at 18:58 he urinates from inside the bus and smokes; at 21:01 he is at the terminus in the company of the passenger who boarded at 18:32, kisses her on the lips, converses with her and smokes inside the bus; he resumes the route without the passenger having purchased any ticket.
INCIDENTS ON 30 JUNE 2017:
From 16:47 to 16:58 he smokes inside the bus; at 20:59 he smokes inside the bus while conversing with a passenger in motion; at 21:00 he allows the passenger to remain inside the bus at the terminus and makes physical contact with her (embracing her, slapping her and kissing her), while also allowing her to travel without purchasing any ticket upon resuming the route; he remains in conversation with her while driving, at the same time permitting her to caress him.
- INCIDENTS ON 23 JULY 2017:
At 16:51 he allows a passenger to board without purchasing a valid ticket, with whom he remains in conversation while in motion; at 17:12 he exits the bus accompanied by her, having previously smoked inside it; at 17:18 the passenger boards the bus again in his company, and he allows her to travel without purchasing a ticket; at 17:20 he resumes the route and smokes inside the bus, continues talking with the passenger and keeps smoking; at 17:27 he makes physical contact with her (embracing), continuing to do so at 17:29 and in the following minutes (embraces, slapping on the buttocks, caressing and groping) while smoking; at 17:32 he gropes the passenger on her genital area, after which she immediately does the same to him, at 17:33, and physical contact continues until 17:38 (groping, mutual bodily contact). At 17:43 he resumes the route and continues conversing with the passenger until she leaves the bus at 17:51.
- Previously, on 20 April of the same year, at 15:05 he urinated from the bus and smoked; he smoked again at 19:49; on 21 April he urinated from inside the bus at 15:15 and smoked at 15:21, 17:35 and 19:44."
ruling full text at link: https://www.poderjudicial.es/search/AN/openDocument/6c2050dadc63171b/20211029
Use of surveillance cameras as evidence in employment law
- In a dismissal case, video footage is admissible as evidence even where the footage reviewed covers periods prior to the alleged incidents. ruling of the Supreme Court, Fourth Chamber (Employment), ruling 503/2022 of 1 June 2022, Appeal no. 1993/2020
