Spain: Video Surveillance In Disciplinary Dismissal. New Data Protection Regulation

Last Updated: 6 June 2019
Article by Manuel Vargas

Pamplona Employment Tribunal No. 3 has settled a claim for disciplinary dismissal in a case of aggression on account of a fistfight between two company employees who came to blows.

At the end of the working day, two employees were recorded by the company's video surveillance cameras engaging in a fight in the car park, in the course of which one of them, who carried a whip, hit the other, and the latter, in turn, hit his colleague with a motorcycle helmet that he was carrying in his hand. Both were swinging punches at each other and continued the fight until they were separated by another employee present on the site.

Recent legal doctrine by the Spanish Supreme Court endorses the absence of need or the obligation on the part of the company to offer specific information to inform employees when it intends to use surveillance cameras as a system to monitor employee work activity for possible disciplinary measures and/or dismissals.

However, Pamplona Employment Tribunal No. 3 establishes that the evidence obtained from the video recording is null and void because the company had limited itself to putting up a sign warning of the presence of cameras, but it had not informed the employees of its installation or of the possibility of penalising or dismissing them because of the events that might be recorded by these cameras, in the case that such events constituted a breach of labour law.

The aforementioned Employment Tribunal determines the validity of said evidence in accordance with the new Spanish and European Union Data Protection Regulation. Thus, the limits of employer's control of the work activity are analysed with respect to the employee’s right to data protection.

Specifically, it examines the new Spanish Data Protection Law, which regulates the use of video surveillance systems in the workplace. According to said law, in cases where an illegal act is recorded, the company will be understood to have fulfilled its duty to inform when there exists, at minimum, an informative sign that indicates a “video surveillance zone”.

Nonetheless, the Employment Tribunal understands that this provision enters in conflict with the Judgment of the European Court of Human Rights of January 9, 2018 and with the European Data Protection Regulation, which establish the desirability of informing employees about the installation of video surveillance cameras and the possibility of sanctioning or dismissing them because of the events that could be recorded by these cameras, if said events were constitutive of a breach in labour law.

The Judgment is of great interest since it is the first ruling by a Spanish court on the validity that can be given to the evidence of video recordings after the publication of the new Spanish Data Protection Law and also an interpretation of the new European Data Protection Regulation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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