A recent judgment of the High Court of Justice of Galicia has condemned a worker for recording a co-worker without permission, as the author of a minor offense in accordance with the applicable collective agreement.
In other cases, the recording of images through technical devices that ends up being the subject of controversy in the courts is carried out by the employer, in exercise of his power to control the fulfillment of the work. And it is in these cases when the fundamental right to privacy of workers comes into contradiction with the necessary control of work activity by the employer.
Not every recording in the workplace constitutes unlawful interference. Article 18 of the Constitution guarantees the right to honour, personal and family privacy and one’s own image, as well as the so-called right to personal data protection. The law, the constitutional precept continues, must limit the use of information technology to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights.
Taking these premises into account, any citizen can request the protection of fundamental rights and freedoms and public freedoms, before the ordinary courts through a preferential and summary procedure, or through the amparo appeal before the Constitutional Court, as proclaimed in article 53.2 of the same text. The violation of these basic rights, by obtaining recordings through any device, can directly lead to the use of these channels.
Regarding business control, Fernando Dombriz, managing director of the Paradell Technologies Group, recalls that article 20.3 of the Workers’ Statute empowers the employer to adopt timely surveillance and control measures to verify compliance with labor obligations and duties, with the limit of consideration due to the dignity of the employee and taking into account, if applicable, the real capacity of workers who have a disability.
He knows in depth all the sides of the coin.
The other norm alluded to by the expert is Organic Law 3/2018, of December 5, on the protection of personal data and guarantee of digital rights (article 89), which establishes, in the same way, that employers may treat images obtained through systems or video cameras for the exercise of control functions of workers or public employees. Therefore, the company must inform workers (or officials) about this measure in advance, and expressly, clearly and concisely, and always excluding places intended for rest or recreation.
Dombriz makes a first precision, distinguishing “video surveillance cameras” and “hidden cameras”.
The installation of the first ones has to respond to several requirements: “it must be announced, using posters; all staff must be duly informed about the installation and the objective pursued; certain areas will be respected, such as changing rooms, bathrooms and dining rooms; and the principles of suitability, necessity and proportionality will be followed”. Despite the requirement of prior information, the following qualification is of special interest: “the worker’s consent will not be necessary”.
Regarding the use of hidden cameras, “it should be limited to very exceptional cases and never on a preventive basis.” As for the casuistry, “the installation is usually motivated by specific acts of sabotage and misappropriation of company material”, and the employer’s actions must obey the same principles. In its installation, the company must adhere to a strict protocol, without using advertisements through posters, “recommending the outsourcing and control of the recordings in a private investigation company, which will carry out the viewing, issue a report and take care of removing them once once the proof has been obtained.
Regardless of the mechanism chosen, these means are frequently used to resolve conflict situations linked to absenteeism and other forms of breach of contracts.
The location of the devices is an essential factor in concluding whether or not the right to privacy has been violated: for example, the Superior Court of Justice of the Canary Islands sentenced a company in December 2021 for non-pecuniary damage caused by relocating a camera in whose radius of action was part of the staff dining room and the entrance to the changing rooms. To set the amount of compensation for the damage caused, the court assessed factors such as the negligence and intentionality of the offending subject, the presence of prior Inspection, the company’s business figures and the number of workers affected.
On the contrary, the European Court of Human Rights issued an interesting ruling in October 2019, declaring the installation of cameras in a supermarket proportionate and legitimate, which made it possible to obtain sufficient evidentiary material to convict several cashiers for the theft of various products. Considerable losses had been verified and the employer had well-founded suspicions of the actions of the workers. The court declared the non-violation of respect for the private life of the offenders, so they were not compensated for any non-pecuniary damage.
Jorge Sarazá, labor lawyer and partner in the labor area of Ceca Magán Abogados, shares the criteria, as a general rule, of prior information to the employee, in a “crucial and imperative” manner, despite the fact that “some rulings, analyzing specific cases and specific, has allowed the express non-information to workers and their representatives when the purpose of labor control and the disciplinary action to be executed depended on it.
Thus, the lawyer understands that “if the worker consents, knows and is informed of the existence of the video surveillance system, as well as its possible disciplinary and labor control purposes, its use is fully legitimate by the employing company.”
Doctrine and jurisprudence have been adjusting their criteria based on changing regulations and, above all, the advancement of technology in recent years.
Fernando Dombriz emphasizes that “the decisions of the courts have evolved towards a greater acceptance in the use of images obtained from video surveillance and hidden cameras as valid evidence measures to sanction and sometimes lead to the dismissal of the employee.”
What requirements must the facility and the material obtained meet in order to acquire probative value in court? According to the technician, principles such as “proportionality, reasonableness and suitability” must be used, and for this he presents as an example an order of the Supreme Court dated February 16, 2022.
This resolution, says Dombriz, determined whether the evidence obtained was valid and, consequently, whether the dismissal carried out should be considered appropriate or null. The key to agreeing with the company was “the degree of minimal intrusion, due to the area and people involved, dealing with a recording limited to what is strictly necessary and on a temporary basis.” The employer had observed vandalism acts of destruction of several beverage vending machines in the workplace dining room, and the investigation, carried out by a detective agency, was based on the exclusive recording of the affected area, without focusing on the rest of the the room and without accompanying sound recording.
On the contrary, if an illegitimate use of the evidentiary material is decreed, the effects may be diverse. For Jorge Sarazá, there are many possibilities: “responsibility will depend on the degree and scope of the breach by the company: it may range from the mere invalidation or declaration of nullity, in a subsequent trial, of the evidence obtained illegally, passing through sanctions of competent bodies (Data Protection Agency, Labor Inspection, etc.) until considering the violation of fundamental rights that can generate compensation for damages.
In short, prior to the installation of any device, the employer must reflect on these extremes. In the words of Sarazá, “the cameras can be installed for control purposes, complying with the legal requirements, but not in a systematic, general way and for any purpose”. After analyzing and complying with the duty of information, together with “the triple judgment of suitability, necessity and proportionality to know if the installation is adequate or reasonable”, planning is recommended: “to have an internal policy in the company that regulates these aspects will be key to the success and assessment of the test”.