The Constitutional Court recently ruled on this matter in its Plenary Judgement of 29 September 2022, admitting an appeal lodged by a company against a judgement ruled by the High Court of Justice of the Basque Country stating that the dismissal of a worker was unfair due to deeming that the means of evidence used, images recorded on the company’s security cameras, was illegal since there was no record that the worker had been informed of the processing of these data for disciplinary purposes, which meant their use as evidence was invalidated. However, the Constitutional Court ruled that the company’s fundamental right to effective judicial protection had been violated (Article 24.1 of the Spanish Constitution) related to the right to use the relevant means of evidence and a process with full guarantees (Article 24.2 of the Spanish Constitution). It was a case in which, due to conduct that was categorised as irregular by the management, the company began examining the recordings on the security cameras installed in places used to serve the public, verifying that illegal conduct had indeed been committed by one of its workers, which led to his disciplinary dismissal for this reason, the company using the recording on the security cameras as evidence of the infringing conduct.

The judgement ruled by the Constitutional Court analysed whether or not the installation of the system and its use for disciplinary purposes was in accordance with the data protection regulations and, if it was not, assessed its possible repercussion from the standpoint of the worker’s right to privacy to hence decide on the legality or illegality of the evidence and therefore on whether or not the right to effective judicial protection had been violated.

Does installing video surveillance systems for labour control purposes violate the worker’s right to personal data protection?

Regarding the installation of video surveillance systems and the use of the recorded images for labour control purposes, the Constitutional Court stated that, although the company had a duty to expressly, clearly and concisely inform its workers beforehand, the Spanish Act 3 of 5 December 2018 on personal data protection and the guarantee of digital rights allows, in the case of flagrant illegal conduct, the duty of information to be deemed as duly fulfilled if a sign is placed in a visible place with a warning that the system exists, which the Constitutional Court considered to have occurred in the case in question, hence resulting in the use of the recorded images being deemed valid by the Constitutional Court in order to verify that illegal conduct had been committed by a worker.

Does installing video surveillance systems for labour control purposes violate the workers’ right to privacy?

The Constitutional Court stated that, in the case in question, installing the video surveillance system and the resulting use of the recorded images was a measure that was justified (prima facie signs of irregular conduct being committed by the worker), suitable (recording the possible illegality of the conduct), necessary (to prove the labour infringement) and proportional (since the cameras were installed in working areas open to serve the public) and therefore, after completing this procedure for examination, it ruled out that any harm had been caused to the worker’s right to privacy regulated in Article 18.1 of the Spanish Constitution.

In conclusion, the Constitutional Court ruled that the evidence of the recordings on the security cameras was legal due to deeming that by obtaining it the worker’s right to data protection and right to privacy had not been violated.

The dissenting votes of the judgement ruled by the Constitutional Court.

However, the dissenting votes of five senior judges of the Plenary should be mentioned regarding the judgement analysed here, who did indeed consider the worker’s right to data protection had been violated by concluding that this control system had already been used by the employer five years earlier to dismiss another worker and the anomaly had not been remedied, consisting of the lack of information to employees about the use of the video surveillance system to control their activities, as required by the Spanish Act 3 of 5 December 2018 on personal data protection and the guarantee of digital rights and hence the company used resources and rights that the legal system only grants in an exceptional manner and that under no circumstances may be used to avoid fulfilling the company’s duties regarding fundamental rights.

Conclusions about the case law trend on this matter.

The large number of dissenting votes by the senior judges of the Chamber against granting legitimacy as evidence to the graphic video recordings obtained by the company leads us to think that this will continue being a disputed issue in the courts and hence, if the company needs to use this kind of evidence for disciplinary purposes, it should fully comply with the data protection regulations in force, in particular, the duty to provide information to the workers.