It is common for companies to use detectives to prove behavior that could be sanctioned or even merits termination of the worker. Their results are often fought in court and lately Supreme Court has established a determinative jurisprudence. Limits of using this resource.
One of the most recent decisions on this subject approves the use of “nor” despite the absence of any grounded doubt. certain number of clues“About the behavior of the worker. In any case, the jurisprudence of the Supreme Court has argued that the hiring of a detective should be implemented in some way. proportionate and in all cases respectful of the “dignity” of the worker and your privacy.
Pere Vidal, partner of RocaJunient, It draws attention to the application of the provisions of the 2014 Private Security Law limiting data acquisition in such cases. at home or in reserved places, because they are protected by the right to confidentiality. “The evidence obtained here is considered illegal because it violates fundamental rights,” he reminds this newspaper.
Thus, the new decision allowing companies to use detectives was dated September 12 and published by the Ministry. Social Room Supreme court decision regarding a healthcare company operating in the Basque Country and Navarra. One of its services is building cleaning, and the purpose of hiring detectives was to verify whether two window cleaners suspected of being able to clean were fulfilling their obligations. spend part of your work day in bars for the consumption of alcoholic beverages.
The decision signed by the judges and available to El Periódico de España Antonio Semper, Sebastián Moralo and Ignacio García-Perrote It decides against the declaration of invalidity of the dismissal of one of the two workers affected by the monitoring. Both the Bilbao court, which heard the matter at first instance, and the High Court of Justice of the Basque Country He deemed the tests “illegal” There is a verdict against him obtained by a private investigator, but the high court does not share this view and partially accepts the company’s appeal, but calls the dismissal unfair and must choose to reinstate him or pay him the lost wages.
In this particular case, the affected worker had been working for thirty years on a contract that was subrogated by various organizations until he began providing services to this company. He worked a 6 a.m. to 1 p.m. schedule and traveled from one building to another in the company car with another colleague.
From bar to pier
In mid-February 2021, it was decided to subject him to detective surveillance, and the inspector included information regarding alcohol consumption on certain six days of March in his report, which led to the arrest of the suspect. Dismissal due to discipline, His partner was suspended from work and received two months’ salary.
In the company’s opinion, the worker “committed fraud” infidelity and abuse of trust “insubordination” and “disobedience in commanded efforts”, “habitual intoxication” and “persistent and voluntary impairment of work performance”carelessness in the act of service“. What happened was also described as “leaving work without just cause and not complying with the regular working day.”
HE Bilbao Social Court No. 6, However, he declared the dismissal null and void and ordered the company to reinstate the window cleaner. pay him 10,000 euro compensation For damages resulting from the violation of their fundamental rights on the grounds that the detective’s surveillance constituted an invasion of their privacy. The decision was also confirmed by the supreme court, which confirmed that the test was illegal because The reason why the company agreed to follow up is not justified, this amounted to a failure to respect “the principle of proportionality necessary for the adoption of any restrictive measure against fundamental rights”. Since there was no other evidence against the employee, the dismissal was invalid.
In this case, the Prosecutor’s Office argued in favor of the company, arguing that the termination letter, far from containing general accusations, described specific facts “known to the employer” that led to the detective’s hiring. Therefore, the Public Ministry denied the possibility of any violation. fundamental right to privacy of the worker. In his opinion, the measure was appropriate and proportionate.
We go down and play ball
In contrast, in this case the company presented a 2017 decision of the High Court of Justice of Catalonia, which declared that the dismissal imposed on a worker was admissible. sick leave with tendinitis The person who was seen playing ball or taking his dog for a walk was seen driving his vehicle.playing hide and seek with children and going up and down the stairs.
In any event, the Supreme Court’s main question regarding the use of detectives in this case revolved around whether there was a need for the company. prove that there are indicators of workforce mismatch In order for the evidence in the detective’s statement to be in compliance with the law, these indications were not provided by the worker in the two cases to be examined.
The decision is based on the following fact: Companies may request, Always, proper performance of job duties taxes imposed on the worker and that the requirement in question is “logically with due respect for the dignity from the workers”. However, he appreciates that Article 20 of the Labor Code provides that the employer “may take such measures as it deems appropriate to monitor the compliance of the worker”.
Respect for reserved spaces
For all these reasons, he appreciates that, in the case of the window cleaner, the detective’s surveillance was not carried out at the worker’s home or other segregated locations; It is added that the company’s mission refers to the designated activity outside the business center. . work. yes ok The law prohibits the investigation from affecting the most reserved area people’s privacy”does not require concurrence of well-founded doubts nor is there a specific number of indicators in assessing the legality or unlawfulness of evidence”, because, according to the Supreme Court, the requirement in question is “would make the addition of other elements of evidence useless or unnecessary“, the judges conclude.
However, in this particular case, although the dismissal could not be considered invalid (since detective evidence was not illegal) “the lack of accreditation of the non-compliance attributed to the worker in the dismissal letter means that this situation now deserves to be classified as unacceptable”.
residence limit
truth Surveillance does not take place in designated areas This seems to be the limit set by the Supreme Court following other recent decisions on the same issue. So last May the Supreme Court rejected the company’s appeal and confirmed what the court said. Supreme Court of Justice of Galicia In a case where dismissal was unacceptable due to the recording of footage provided by the detective In the worker’s garden, An area that should be classified as “reserved” in accordance with law regulating private security.
In this case, other previous decisions Supreme Court of Justice of the Canary Islands, June 2022 supports capturing images exterior of a building Because it was a place that everyone passing by on the street could see.
In other words, in order for the evidence to be valid in a judicial trial, it must comply with the provisions of the Private Security Law on the issues it determines regarding the principle of proportionality. necessity and suitability and respect the fundamental rights of the employee, paying special attention to the right to privacy.
As an example of these requirements, lawyer Pere Vidal points to a decision made by the court. Supreme Court of Justice of Andalusia February 2021 This supports the company hiring an investigator to determine how the worker used time requested for medical procedures at work. In this case, a shift change To facilitate said medical assistance, however, the investigation confirmed that the employee did not actually attend any doctor’s office but instead engaged in leisure activities.
However, the Supreme Court’s new decision affects this as long as the conditions of proportionality, necessity and appropriateness are met no need for evidence or previously suspected persons turning to private detectives. According to the lawyer, things that are never accepted are: prospective investigations or investigations commissioned solely on a commercial basis, the expert insists. This situation was considered, for example, in 2021 by the Andalusian supreme court in the case of a worker who was monitored from the day the sick leave report was issued for the first period of temporary incapacity after fainting.