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Global employment briefing: Spain, January 2015

  • Spain


    Right to Privacy, Data Protection Laws and Disciplinary Proceedings

    Spain has some of the strictest data protection laws in Europe and these laws, combined with the constitutional right to privacy, are particularly relevant to employers when considering the admissibility of evidence in disciplinary proceedings.

    By way of example, in a case which came before the Spanish Supreme Court last year,1 an employer had sought to rely on evidence obtained from video cameras to show that the disciplinary dismissal of the employee was justified because it proved that the employee had breached the contractual duty of good faith. The employer lost the case both in the court of first instance and on appeal, because it was held that the employer´s evidence had been obtained in breach of Spanish data protection law, and in breach of the constitutional right to privacy and was therefore inadmissible. The consequence, in this case, is that the dismissal was held to be null and void.2 A null and void dismissal means that an employer must reinstate the employee, and pay back pay from the date of termination to the date of re-instatement.

    In summary, this was held to be so because, whilst the employer had informed the employees’ representative that surveillance cameras would be installed in the supermarket, the employees’ representatives had not been informed that data captured from these cameras could be used in disciplinary proceedings against employees. On the contrary, the employees’ representatives had been expressly informed that the cameras were being installed only to catch thefts by customers or third parties. In this case, the employee was a cashier and it was alleged that she was undercharging or not charging her partner for certain items.

    Spanish law provides that employers have the right to adopt measures of supervision and control to ensure that employees are complying with their employment obligations provided that such measures do not breach any of the employee’s constitutional rights. The Spanish constitution specifically states that the law will limit the use of information technology to guarantee the honor and personal and family privacy of Spanish citizens in the exercise of their rights. In addition, Spanish data protection law provides individuals have the rights, amongst others, to be informed: (i) of the existence of a file or how their personal data may be used, the objective of the collection of data and where the information will be sent; (ii) of the consequences of the obtaining of personal data.

    Broadly speaking, these provisions have been interpreted by the courts of Spain to mean that there is an obligation on employers to give employees prior, express, clear and unequivocal warning that personal data (the images from the CCTV in this case) may be obtained and used in disciplinary proceedings. The courts have also stressed that any collection and use of data must be necessary, appropriate and proportional in all the circumstances. The court emphasized that the fact that the cameras were visible did not make any difference to the employer´s obligations or the illegality of the employer’s actions.

    We recommend that clients review the their contracts of employment, and company policies including their data protection policies to ensure that all the purposes for which the data may be used (including disciplinary purposes) are expressly listed. Employers also have an obligation to inform the Spanish Data Protection Agency about the creation of a file relating to evidence obtained for disciplinary proceedings.

    1 Sentencia de la Sala Cuarta del Tribunal Supremo, de 13 de mayo de 2014 (RJ/2014/3307).
    2 One of the Judges did give a dissenting opinion in this case.

    For further information, please contact:

    Luis Aguilar Romera
    Tel: +34 91 429 43 33