Private detectives and Data Protection

On some occasions and due to different circumstances, an insurance company, a mutual insurance company or any other company may be forced to hire the services of a third party to carry out an investigation.

According to the latest report published by Adecco, sick leave due to common contingencies and non-occupational accidents are the leading causes of absenteeism in Spain. Companies consider that this is where the most fraudulent situations are hidden.

In order to prevent absenteeism, employers can carry out medical check-ups on their workers, this type of check-up should not be compared to the health surveillance service in terms of occupational risk prevention. Companies are legitimized to do so by the contractual relationship itself and therefore do not need the consent of the worker, however, this legitimization does not include the details of the medical report, only the conclusionHowever, this legitimization does not include the details of the medical report, only the conclusion, that is to say, whether or not the worker is fit for the incorporation to the job.

The Guide on labor relations published by the AEPD states that under no circumstances can the health data of workers be included in any file to detect absenteeism, as it is considered a disproportionate measure. Let us remember that health data are classified as special category data, by Article 9 of the RGPD.

Implications of hiring a Detective

As we have mentioned above, companies may hire the services of a private Detective whose activity must be adequate with all the obligations provided for both the RGPD and the LOPD-GDD as well as the Law 5/2014 of April 4, on Private Security.

The company does not require the consent of the employee, since the employment contract itself acts as the legal basis in relation to art. 20.3 of the Workers’ Statute. the Statute of Workers.

In the development of the investigation it must be ensured that the intimate life of the worker is left aside since it is forbidden to investigate the life that takes place in the private home or restricted areas, nor may be used means that violate the right to honor, personal or family privacy and self-image. All this is established in art. 49.4 of Law 5/2014.

Prior to this hiring, the company must prepare and pass a proportionality test, otherwise it would not be justified if there were other less invasive measures for the worker.

When a private detective is hired, he/she contracts a data protection relationship with the company that hires him/her, specifically, he/she will have the status of Data Processor and one of the issues that both parties must comply with is the signing of the corresponding data protection contract, as established in Article 28 of the RGPD.

Once the investigation has been completed, the report prepared by the detective must include the data of the contracting entity and only that information directly related to the purpose of the contracting; information that is not related to the purpose of the investigation or to the legitimate interest alleged in the contracting must not be included.

The information provided will be kept for at least three years, without prejudice to the rules of data blocking. The data obtained during the investigation will only be made available to the contracting company, and will be kept confidential, although they will be made available to the courts or law enforcement agencies in the event of legal proceedings or police investigation.

Business Adapter® at your service

If you need to hire a Private Detective and want to comply with the Data Protection Act, contact your consultant to receive documentation and instructions.

If you are a Private Detective and want to comply with the Data Protection Law, let us help you. Contact us by email: info@businessadapter.es, you can also call 96 131 88 04, or leave your message in this form:

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