The doubt raised is more common than it may seem and involves certain situations, conduct or attitudes by the workers within a company that make it necessary for the company to need to search one of its workers or his/her belongings at a specific time.
 

As seems logical to state based on this brief introduction, we are not dealing with a simple issue but it depends on having sufficient justification to conduct this search along with other requirements that we will analyse below since in these cases we are in a position of conflict between parties and rights.


In this respect, Article 18 of the Spanish Labour Relations Act, (hereinafter referred to by its initials in Spanish “ET”), “inviolability of the worker”, only enables the company to search workers when this is necessary to protect the business equity and that of other workers in the company.

 
As we have mentioned above, in spite of the text of the article, the worker’s right to inviolability and privacy is in conflict in these cases with the right to the employer’s property, the latter prevailing whenever the procedure is conducted and the limits are sufficiently observed.


The right to personal privacy referred to in Article 18.1 of the Spanish Constitution implies an individual stronghold provided with full legal content that must be protected from any kind of external interference; no matter the legitimacy such actions could have. Therefore, there is absolutely no doubt at all that the company can exercise the corporate right to require correct fulfilment of the duties imposed on the worker at all times and, for such purpose, it can implement the relevant monitoring mechanisms that enable it, if need be, to carry out the subsequent justified actions of the sanctioning activity that must be imposed.


Therefore, the employer is granted power of control by becoming a kind of “private police force”, which must however be subject to the following limits and/or requirements stipulated in the legal regulations, (according to Article 18 of the ET):
 

  • When conducting the search, the worker’s dignity and privacy must be observed to the maximum, as specifically imposed according to Articles 18 and 20.3 of the ET.
  • It must be conducted in areas of the work centre and during working hours.
  • A workers’ legal representative, (hereinafter referred to by its initials in Spanish “RLPT”), must attend or be present or, if the work centre has no workers’ representatives, another of the company’s workers must be present, whenever this is possible.

In these cases, the representative being present implies a guarantee of the objectivity and effectiveness of the evidence but is not related to protecting the privacy of the worker being searched, as explained in the judgement of the High Court of Justice of Catalonia of 4 December 2017, Appeal number 6007/2017.

Breach of such requirement hence does not imply violation of this specific fundamental right and determines that the evidence provided is not effective but not that it is null and void.

  • There must be specific justification for the search and any claim that it is a routine or preventive search is not considered sufficient, as sustained in the judgement of the High Court of Justice of Catalonia of 23 May 2000, Appeal number 2000/2000.
  • The guarantee of objectivity provided by the representative being present is accepted when, even though there is no representative, the search is conducted in the presence of the police, as stated in the judgement of the High Court of Justice of Catalonia of 4 December 2017, Appeal number 6007/2017.
  • The legal requirement that a representative is present during the search is only applicable when it is conducted in a mandatory manner but not if the worker voluntarily accepts that such search is conducted, this was the interpretation in the judgement of the High Court of Justice of Catalonia of 14 January 2009, Appeal number 7117/2008.

 

Can the worker’s bag and belongings be searched if there is suspicion of theft? 
 

In the specific case of this judgement, a worker rendered her services in a shopping centre and, when she left the premises through the staff exit door, the anti-theft alarm went off. A security guard searched her bag and found four articles she had not paid for: The company decided on her disciplinary dismissal.
The recent judgement of the Labour Chamber of the Supreme Court of 5 June 2024, appeal (cassation) 5761/2022 for unification of doctrine, ruled that searching a worker’s bag without a legal representative, a staff delegate, works council being present or, if there are none of these, another employee, was illegal.


The requirement that when a search is conducted a worker’s representative or another worker must be present is not related to protecting the worker’s privacy but is a guarantee for the objectivity and effectiveness of the evidence. The evidence is not valid if this requirement has not been met.


The ineffectiveness of the evidence of the search of the bag conducted by violating the regulations resulted in the disciplinary dismissal being ruled unfair.

 

 However, in the case in question, since the worker had shorter working hours in order to care for her underage child, “objective nullity” was applicable, as stated in Article 55.5 of the ET, hence this shows the importance of meticulously meeting the legal requirements when carrying out the actions.


Can the company generically adopt measures, such as searching handbags, bags, backpacks or similar items for monitoring and control purposes?


In this respect, the measure must always be limited and proportional and cannot be general and indiscriminate.


This issue was dealt with in the judgement of the Labour Division of the National Court of 30 November 2021, Appeal number 226/2021, which analysed the legality of the company’s practice of imposing an obligation to show the contents of the workers’ handbags, bags, backpacks or similar items every day when they left the premises in the presence of the shop’s manager.


In the case analysed, adopting this measure, based on the purpose of generically monitoring and controlling the shop without having proven there were any thefts in the shops or unidentified losses, was ruled null and void due to not being a measure that was either proportional, suitable or necessary since the principle of proportionality was not observed and, for further clarification, was not conducted with the RLPT being present.


As a consequence of the previous explanations, it is true, as we have already stated, Article 18 of the ET allows the company to conduct searches to protect the company’s property and that of the other workers in the company, but such searches must be conducted by respecting the worker’s personal dignity and privacy and observing the fundamental rights and other guarantees provided for it to be correctly conducted and no indiscriminate controlling practices are allowed.
 

Author: Alejandro Alonso Díaz, lawyer | Labour Law at RSM