Can cameras be used to record employees for disciplinary purposes?
Employers often use surveillance cameras as evidence of their employee’s behavior for disciplinary purposes. The general acceptance of the use of cameras has been subject to a change in criteria following the Constitutional Court Judgment of February 11, 2013.
Traditionally, the possibility of recording images of a worker has been analyzed from a fundamental right to privacy and publicity perspective (article 18.1. of the Spanish Constitution). Although the fundamental rights of a worker (in this case, the right to privacy) are applicable to a labor relationship, they may be restricted on grounds of surveillance and control by the employer pursuant to article 20.3 of the Workers’ Statute (according to criteria based on suitability, proportionality and necessity).
Following the Constitutional Court Judgment, the possibility of making and using recordings is also analyzed from a fundamental right to personal data protection perspective (article 18.4 of the Spanish Constitution). Therefore, the recording and use of a recording requires prior notification to all employees on the nature and scope of how the data is to be processed. Although this doctrine has been ratified by the Supreme Court (Judgment of May 13, 2014), there have been subsequent contradictory decisions with regard to both the mandatory nature of notification by the employee, as well as the consequences of failure to comply with the requirement, to the extent that certain judgments tend to consider that a breach of the fundamental right to personal data protection only gives rise to the invalidity of the evidence, whereas others attribute more serious consequences, such as the action taken by the employer being deemed as null and void.
In short, we are currently in a case law process of defining and specifying the requirements for the use of video recordings for disciplinary purposes, as well as the consequences that may result from a breach of the established procedure.
Garrigues Labor and Employment Law Department