For a company to be able to have a worker lawfully monitored by a detective, mere indications of possible irregular conduct are not enough.
A few years ago we commented in this blog on the possibility of an employer seeking a detective’s services where the employer suspects fraudulent conduct on the part of one of its employees.
Since then, several rulings have delimited this possibility, reconciling employer control with workers’ right to privacy and establishing a number of requirements for the validity of this type of evidence in labor trials. Notable in this regard is the judgment of the Canary Islands High Court of Justice of Santa Cruz de Tenerife of March 27, 2017, subsequently confirmed by the order of the Supreme Court of April 3, 2018.
The case was the following: the company had certain indications that a worker was stealing pharmaceutical products from its warehouses. To corroborate them, the company hired the services of a detective who, by various means (including the installation of cameras), confirmed the theft. Although the court of first instance that heard the case approved the dismissal, the Canary Islands High Court of Justice upheld the worker’s appeal, declared all of the evidence null and void and declared the dismissal to be unjustified.
In doing so, the Court made several considerations that are summarized here. First of all, the judgment recalled that this evidence should meet the requirements of need, suitability and proportionality, already mentioned by the Constitutional Court in its judgment 39/2016 of March 3, 2016.
Next, the Court analyzed in depth the difference between the concept of video surveillance (understood as the recording of images and sound remotely by installing devices, whether permanent or not) and the mere capture of images by the detective, which would customarily be taken by the detective in person in the course of his investigation. This difference is not merely semantic; in cases where cameras are installed, the worker must be previously informed.
Perhaps aware that requiring that the worker be previously informed would defeat the purpose of the investigation, the Court stated that the images taken by the detective were not subject to this requirement, but expressly indicated that it was a question open to analysis that should be examined on a “case-by-case” basis.
Lastly, and at the center of the proceeding, the Court established the requirement that, for the company to be able to lawfully resort to monitoring by a detective, there must first be well-founded suspicions, not mere indications of a general nature, of the possible irregular conduct on the part of the investigated worker.
In the case analyzed, it was evidenced that the worker conveyed a “suspicious” attitude, but not to such a degree as to justify monitoring him. For this reason, the Canary Islands High Court, considering that the worker’s right to privacy had been violated, rendered the detective’s evidence null and void and consequently declared the dismissal to be unjustified.
Both this and other judgments highlight that a detective’s evidence is essential in certain proceedings to determine the reality of a worker’s conduct, but its validity will always be conditional on respect for the investigated party’s privacy, on the strict terms set by the Spanish courts.
Garrigues Labor and Employment Law Department