The Constitutional Court and video surveillance in the workplace. Change of criteria or mere clarification?
On March 3, 2016 the Constitutional Court issued a judgment holding that fundamental rights had not been infringed in the use of video surveillance images recorded in the workplace for disciplinary purposes, without formally notifying the employees that the cameras had been installed or the purposes of the surveillance. This decision has led to heated debate on the supposed easing of control procedures since, despite the Court mentioning on several occasions that it seeks to clarify its opinion on the subject, on closer inspection, it is far from obvious that this is merely a clarification of its criteria rather than a change in theory.
The judgment assesses the lawfulness of the evidence obtained by a store that decided to install video surveillance devices due to the suspicion that money was disappearing, and which only informed of the existence of these devices by placing a notice in the shop window. The recordings revealed that one of the employees was making false returns of items and keeping the money, which led to her disciplinary dismissal.
- The rights that had purportedly been infringed were data protection and personal privacy However, the Constitutional Court held that those rights had not been infringed because: as far as data protection is concerned, the main requirement is the consent of the data subject, which was considered to have been given in this case because it was implicit in the employment relationship and the employer’s right of control. The duty of prior information was also considered to have been met by simply placing the sign in the shop window, without the need to specify the purpose of the control.
- Regarding the right to personal privacy, the rights in conflict should be assessed, based on the principle of proportionality. To do so, it is necessary to analyze suitability, need and proportionality in the strictest sense. It was held that the measure was justified, balanced and not a mere whim on the part of the employer.
Where this judgment has broken new ground is in its interpretation of the prior information duty that is incumbent on the employer. The judgment reveals a change of criteria in its leniency towards the duty to inform employees. Previously, in order to comply with the duty of information, it was essential to expressly inform employees of the purposes of the control, clarifying that it could be used to impose disciplinary penalties . With this judgment, it is sufficient for a sign to be installed so that the employee is aware of the existence of the cameras, but always complying with the obligation that the measure be proportional. A determining factor in this case was both the existence of prior suspicions that the employee was acting unlawfully and also that the information was obtained purely in order to control the employment relationship.
It would therefore appear that the Constitutional Court has limited the scope of the duty of information incumbent on the employer in these cases, so we will have to wait and see how the courts and tribunals interpret the matter in the next few months.
Garrigues Labor and Employment Law Department
