When can video surveillance cameras be used for dismissal

The use of video surveillance cameras to control employees continues to raise significant judicial debate. The most recent judgment of the Spanish Constitutional Court on this matter (judgment no. 119/2022 of September 20, 2022) concerns one of the most controversial provisions of Organic Act 3/2018, on Data Protection and Guarantee of Digital Rights (LOPDGDD), namely the scope of the exception under the second paragraph of article 89(1)—flagrant commission of an unlawful act—and its connection with the GDPR.

The judgment deals with a disciplinary dismissal based on video evidence admitted by the labor court and subsequently considered unlawful by the High Court of Justice of the Basque Country. According to the latter, the company had failed to comply with the specific provisions of the video surveillance general regime under art. 89(1) LOPDGDD because it had not informed the workers or their representatives about the cameras, despite previous similar incidents.

The Constitutional Court admitted the evidence and upheld the appeal, considering the flagrant unlawful act exception of art. 22(4) in relation to art. 89(1) LOPDGDD to be applicable. The Court’s reasoning was as follows.

As regards the basic facts:

(i)    the camera was visible (not hidden) and was installed inside the workplace;

(ii)   an AEPD sign outside the workplace warned that the area was under video surveillance in accordance with art. 22(4) LOPDGDD;

(iii)  the camera had been installed for at least five years;

(iv)  the workers had not received prior and express information of its installation or its potential use for disciplinary purposes; and

(v)   it was known because in 2014 another employee had been dismissed for unlawful conduct captured by the cameras.

After an exhaustive analysis of: (i) the constitutional approach of the rights to privacy and data protection; (ii) ECHR case law (Barbulescu v. Romania and López Ribalda et al. v. Spain); and (iii) labor regulations on data protection in the labor area, the Constitutional Court found that there was no violation of either right.

Regarding the right to data protection, the Constitutional Court held that “the worker, with seniority in the company since 2007, knew and was aware of the existence of the cameras and their possible use for labor disciplinary purposes.” While not excluding the company’s duty of information, the Court points out that “this does not entail an unlawful use of these images in cases of flagrant unlawful conduct, because the greater or lesser flagrancy does not depend on the existence of a fact previously evidenced by the same means.” It also emphasizes that the company complied with the requirement of art. 22.4 LOPDGDD, placing the informative sign in a visible place. In conclusion, the Court argues that “the cameras were used to verify a specific (flagrant) fact on the basis of a specific circumstantial suspicion, as was the manifest irregularity.”

As for the right to privacy, the Constitutional Court considers that the company’s measure was justified (there was sufficient suspicion), suitable (for the purpose of verifying the unlawful conduct through the images), necessary (no alternative measure seems available) and proportionate (the cameras were installed in work areas open to the public, located in visible places and used for a specific purpose).

The Constitutional Court links the admission of the evidence to the right to an effective remedy, ruling that this means of proof complies with the limits established by both national and ECHR case law, as well as with the exception under the second paragraph of art. 89(1) LOPDGDD.

The judgment includes a dissenting opinion by five judges who question the scant weight given in the proportionality test to the company’s lack of diligence in correcting the absence of information regarding past situations. The dissenting judges also rely on the limited nature of the exception under art. 89(1) LOPDGDD. They consider that the verification of a flagrant conduct through video-captured images and the existence of informative signs in the workplace are not sufficient by themselves to justify the use of those images for disciplinary purposes. Furthermore, according to the dissenting opinion, the majority had equated the exception that allows not to inform in a clear, concise and precise manner in the event of a flagrant labor offense with the general obligation to inform.

This is certainly an interesting decision, as the Constitutional Court grants evidentiary relevance to the images captured by video surveillance in a reasonable, habitual context from a business perspective—but controversial from the strict standpoint of the informative aspect of the right to personal data protection.

As the dissenting opinion makes clear, there is currently no consensus on the elements necessary to fulfill the duty to inform. Therefore, a case-by-case assessment will always be required to apply the exception when using video evidence in the event of suspicion of a flagrant labor offense.

The labor context gives rise to multiple and varied situations, where any particular circumstance can tip the balance between the lawfulness and the unlawfulness of video evidence before a court. It is, therefore, advisable to reinforce compliance with information obligations and design active policies that demonstrate rigorous corporate practice in the processing of employees’ personal data.