Video surveillance: valid evidence for dismissals

Yes, Video Surveillance can be used for dismissals, as decided by the Social Chamber of the Supreme Court, in its judgment 1233/2022 of March 30, where a dismissal of a cafeteria employee was considered legal.

This consolidates the jurisprudence in this regard, which will soon be applied by the Courts of First Instance and Superior Courts of Justice.

Is it legal to videotape employees?

The answer is YES, as long as the data protection regulations are complied with, more specifically, if the following requirements are met in accordance with article 89 LOPD-GDD:

Information:

It is mandatory to expressly, clearly and concisely inform workers of the existence of the cameras, indicating whether they capture images and sound, or only some of them, prior to the hiring or installation of these, in compliance with the duty of information of Article 12 RGPD and 11 of the LOPD-GDD.

Distinctive:

At the place where the cameras have been installed, a sign should be placed with information about the video recording area, the data controller, contact details, legal basis and the possibility of exercising data protection rights.

Workers’ Statute:

The cameras are used by the company as part of the employee monitoring measures permitted by Article 20.3 of the Workers’ Statute. The use of this control measure will be applied within the established legal framework and within the limits indicated.

Location of cameras:

The installation of the cameras will be in permitted places, where the privacy of the employees is not invaded, being totally prohibited in rest areas, locker rooms, dining rooms, bathrooms, etc.

Is it necessary to obtain employee consent?

The answer is NO.

Article 6.1 RGPD establishes the lawfulness of the processing, in its paragraph b) states that it will be lawful when it is necessary for the performance of a contract to which the data subject is a party or for the application at his request of pre-contractual measures; that is, the employment relationship between the parties is the legitimate basis for the lawful processing of personal data, including the image of employees through video recordings, provided that this measure is adopted by the employer as a control measure, which complies with the limits established in the standard.

How can a videotape be used as evidence in a dismissal?ow can a videotape be used as evidence in a dismissal?

Article 89. 1 last paragraph of the LOPD-GDD, establishes that in the event that the flagrant commission of an unlawful act by workers or public employees has been captured, the duty to inform shall be deemed fulfilled when there is at least the device referred to in Article 22.4 of this organic law.

However, it is important that a proportional use of the images is made; that is, the images of employees obtained by video surveillance cameras will be used when there is a reason to carry out such recording, in this case in the workplace, it will be the control function, and always preserving the dignity of employees.

Can I record employees without their knowledge?

No, the answer is absolutely not.

Recording with hidden cameras is totally prohibited; this circumstance is not allowed because the duty to inform workers that this type of control exists on the part of the employer has not been duly complied with, since this is totally outside the legal framework, and therefore the use of these recordings could not be used in a lawsuit or used to justify a dismissal.

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If you are a customer and you are thinking of installing a video surveillance system, contact your consultant to receive badges, documentation and instructions.

If you are not yet a client and want us to help you comply with the European and Spanish data protection regulations (RGPD + LOPD) to which any company or professional is obliged, call us at 96 131 88 04, contact us by email: info@businessadapter.es, or leave your message in this form:

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