Using video surveillance footage as evidence in disciplinary proceedings

The Porto Court of Appeal judgment of November 28, 2022, clarifies a controversial issue by recognizing that:

>         video surveillance footage cannot be used for monitoring an employee’s work performance as it is only for the protection and security of persons and property; therefore

>         video surveillance footage can be used as evidence in determining disciplinary liability if the purpose was not to monitor the employee's performance and if the facts might be criminally relevant, regardless of whether there are criminal proceedings.

In the Porto Court of Appeal (“Court”) judgment of November 28, 2022, in Case No. 6337/21.8T8VNG.P1, the Court ruled that article 28 of the Personal Data Protection Law[1] does not require the existence of criminal proceedings for the use of images captured by the video surveillance system. The underlying idea is that video surveillance footage cannot be used for monitoring the employee’s work performance as it is only for the protection and security of persons and property. Therefore, this footage can be used as evidence in determining disciplinary liability when:

     i. the monitoring of the employee's performance is not at issue; and

    ii. if the facts are criminally relevant, regardless of whether there are criminal proceedings.

The issue raised was whether the recorded images (collected using the CCTV system) could allegedly only be used in disciplinary proceedings in the same way they are used in criminal proceedings (citing article 28(4) of Law 58/2019). Thus, the fact that the employer had not made a criminal complaint could lead to the conclusion that the images from the video surveillance system could not be considered for the purposes of the disciplinary proceedings that led to the employee’s dismissal.

The Court held that the use of this footage as evidence is admissible, since its sole purpose was the protection and security of persons and property, and not the monitoring of employee performance.

The Court also ruled that it is true that article 28(4) of Law 58/2019 provides that images and other personal data recorded through the use of video systems or other technological means of remote surveillance can only be used in criminal proceedings, as established in article 20 of Law 58/2019; however, article 28(5) adds that, in the cases envisaged in the previous paragraph, the recorded images and other personal data can also be used to determine disciplinary liability in the same way they are used in criminal proceedings.

The Court considered that not only has the most recent case law allowed video surveillance footage to be used as evidence in disciplinary proceedings (though prior to Law 58/2019), but article 28 of Law 58/2019 does not appear to require the existence of criminal proceedings when determining disciplinary liability, since the lawmakers considered it sufficient that the facts at issue could be investigated in criminal proceedings.

In other words, the decision clarifies a controversial issue by recognizing that:

>         video surveillance footage cannot be used for monitoring an employee’s work performance as it is only for the protection and security of persons and property; therefore

>         video surveillance footage can be used as evidence when determining disciplinary liability if the purpose was not to monitor the employee's performance and if the facts might be criminally relevant, regardless of whether there are criminal proceedings.

The reason for this is the special nature/gravity of the facts attributed to the employee and not the existence of criminal proceedings. It is sufficient that the facts in question can – even in the abstract – be investigated in this type of proceedings.

Accordingly, regarding the appropriation of a book by the employee without paying, the Court held that there was no doubt about the possible criminal relevance of the facts at issue and it allowed the footage in question to be used as evidence in the disciplinary proceedings, regardless of whether the employer had decided to make a criminal complaint against the employee.

[1] Law 58/2019 of August 8, which transposes Regulation (EU) 2016/679 of the Parliament and of the Council of April 27, 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“RGPD”).