Dismissal using Video Surveillance

A Dismissal using Video Surveillance, can be understood as a free tool for any company, but care must be taken to comply with the obligations that this system has with the Data Protection RegulationsIf this is not done correctly, it can lead to the imposition of sanctions, sometimes very heavy.

It is true that sometimes situations caused by employees allow companies to act in ways that a priori seem unlawful, but they serve to defend the legitimate interests of the company and in this post we will analyze the most common situations.

Video surveillance as a labor control measure

We know that the Workers’ Statute, in Article 20.3, allows the employer to adopt the measures it deems most appropriate for surveillance and control to verify the employee’s compliance with his labor obligations and duties. In the same sense, the same article in paragraph 2, states that the employee owes the employer diligence and collaboration in the work, and that both the employee and the employer must submit to the requirements of good faith.

For its part, the Organic Law 3/2018, on the protection of personal data and guarantee of digital rights (hereinafter, LOPDGDD), establishes in its Article 89, how video surveillance systems must be used in the workplace, having to meet the following requirements:

Duty of disclosure

When the company installs a Video Surveillance system, it must inform the employee and the workers’ representative (if applicable) of:

1- The existence of the video surveillance system

2- The purposes for which the video surveillance images may be used

3- Image conservation time

4- What are your data protection rights and how to exercise them?

In the event that the flagrant commission of an unlawful act by workers or public employees has been captured, this duty to inform shall be deemed to have been fulfilled when there is at least the information sign of the videotaping area.

If these requirements are met, the company will be in compliance with legal requirements, and its control measure will be within what is permitted by law.

It is also important to recall the requirements that were established by the European Court of Human Rights, in the “Barbulescu” case(judgment of September 5, 2017):

Suitability

That the recording contained the irregularity committed by the employee.

Need

That the images obtained were necessary as evidence to support the irregular conduct.

Proportionality

The camera positioned towards the worker’s specific position and for a specific time.

Intensity of intrusion

That the placement of the camera did not violate the privacy of the worker.

Disciplinary dismissal through Video Surveillance

It is true that the weakest part of a conflict between workers and the company is the first, but sometimes the helplessness of the company to demonstrate the bad labor practices of workers, leaves no other weapon to ensure the legitimate interests of the company, than to unmask them using the images captured by a video surveillance system.

There are many cases that have reached the highest courts in our country and at the European level, such as the STS 1792/2023 ruling of the Social Chamber of the Supreme Court, dated April 26, 2023, and the ATS 12822/2023 ruling of October 3, 2023, to cite a few recent ones.

Since it is necessary to analyze on a case-by-case basis, what is certain is that the company must comply with the provisions of the Workers’ Statute and the LOPGDD if it is going to use this type of systems in the workplace, and duly inform its employees and representatives, if any, of their existence and purposes.

Dismissal without informing and with hidden cameras

However, there are cases where these requirements are not met, the company can make use of the recordings captured by the cameras when the flagrant commission of an illegal act by the workers has been captured, and base the dismissal of said worker on the information obtained from the video surveillance system.

Another different case would be when the installation of the cameras has not been informed to the workers, but the company considers it necessary and a priority to protect its important public or private interests, and there is reasonable suspicion that a serious infringement has been committed, conditions that allow justifying the company measure and the failure to inform the workers of the installation of the cameras (ATS 12822/2023).

Dismissal in a Valencian case using Video Surveillance

The High Court of Justice of the Valencian Community ruled in February 2022 against Congelados DAIMUS, declaring the dismissal of one of its employees, who was in charge of one of its stores, to be justified.

The disciplinary dismissal was based on the loss of trust and breach of good faith towards the employee, since a series of irregularities related to the cancellation of tickets were detected in 2020 in comparison with the rest of the stores as a whole.

This reasonable doubt of an irregular activity led the company to install a camera that focused only on the workstation where the plaintiff provided her services, without informing her of this, nor were video surveillance signs displayed. This case reached the Supreme Court, which, in its Order ATS 11911/2023, considered that the decision of the TSJCV was appropriate, and therefore declared the appealed judgment to be final.

A similar case has already been decided by the European Court of Human Rights, on October 17, 2019, R. 1874/13 and 8567/13 (Lopez Ribalda II), where a company, faced with irregularities in the cash register of one of its stores, finds it necessary to install hidden cameras for a certain period of time to identify the workers involved, and obtain hard evidence for their dismissal.

In this case, the Grand Chamber considered the use of the cameras to be valid and lawful, since the company had sufficient suspicion that an unlawful act was being committed that was damaging it economically, and in this case, the absence of the duty to inform the workers of the existence of the cameras was sufficiently justified, since what it was intended to protect was the public or private interests important to the company, as well as the existence of a reasonable suspicion in the commission of the serious infringement.

Business Adapter® at your service

If you have any doubts about how to use your video surveillance system to comply with data protection provisions, do not hesitate to contact your Consultant and if you are not a customer, contact us by email: info@businessadapter.es, you can also call 96 131 88 04, or leave your message in this form:

[su_button url=”https://businessadapter.es/contacto” target=”blank” background=”#f6f903″ color=”#181818″ size=”7″ center=”yes” icon_color=”#000000″]Contact us, we will be pleased to help you.[/su_button]