As we all know, an employer can hire a detective to prove the possible irregular conduct of any of its employees.

The Spanish Civil Procedures Act considers the evidence obtained through private detectives as a specific form of witness evidence. 
In this respect, Article 265.5 of the aforementioned regulation considers the following are documents for evidence: “Reports drawn up by legally authorised professional private investigators about relevant facts on which the claim is based”. 

Regarding the facts discovered by the detective, if they are not acknowledged as true, witness evidence is provided at the hearing, which is also limited, and only questions can be asked about the facts included in the report that such investigator has drawn up.

In this respect, case law doctrine has compared corporate control with the workers’ right to privacy and there must be well-founded suspicions that the worker is committing irregular conduct as a requirement for the valid use of this system of evidence. In addition, the well-known triple opinion of proportionality must be met, in which the suitability, need and proportionality is assessed in the strict sense of the measure.

In other words, the measure the employer adopts must be the least invasive possible of the worker’s right to privacy, being absolutely necessary that the labour obligations are fulfilled to achieve the objective of the surveillance and to provide the employer with a benefit greater than the harm that would be caused to the employee by him/her being subject to this control measure.

So, let’s see what happened in this case…

What happened in this case?

In this case a worker who cleaned the windows of some sports facilities was dismissed, after verifications were obtained during the surveillance conducted by a detective hired by the company related to a series of irregular actions committed during his working hours.

Specifically, according to the dismissal letter, these irregular actions included working and driving under the influence of alcohol, inappropriately using the tools owned by the company, fraud, disloyalty and abuse of trust in the work assigned to him, being habitually intoxicated, a voluntary decrease in his work performance, disobedience and negligence when providing his services, leaving his workplace without a justified reason and constant failure to fulfil his working hours.

In spite of the numerous breaches of contract committed by the worker, the lower level, the Labour Court, ruled the dismissal was null and void due to the worker’s fundamental right to privacy having been violated. This was because it considered that the company had not justified the use of the detective’s evidence, in other words, no well-founded suspicion had been proven for the use of this means of evidence and hence the evidence obtained from such surveillance could not be taken into account. 

This judgement was upheld by the Division of the High Court of Justice of the Basque Country, which repeated that illegal evidence had been provided that violated the plaintiff’s right to privacy.

What did the company allege?

The appellant company questioned the interpretation for applying Article 18 of the Spanish Constitution to settle the issue submitted to debate and deemed that Articles 24 and 53.2 in the same legal text had been infringed.

It sustained that surveillance of a worker in his workplace did not imply per se an intrusion in the sphere of his privacy but was a corporate action within the company’s right to control the performance of the services rendered, the surveillance evidence submitted was hence legal and must be considered and assessed as such. In fact, it questioned whether the legality of a private detective’s surveillance as evidence was subject to prior prima facie evidence or whether it should be based on effectively exceeding the limitation and infringement of fundamental rights, invoking Articles 24 and 53.2 of the Spanish Constitution.

What did the Supreme Court rule?

The crucial issue was based on whether or not there was a need for the company to provide prima facie evidence that the worker had infringed his labour duties for the detective’s witness evidence to be legal.

The Chamber deemed that when, as occurs in the case in suit, the work had to be necessarily performed outside of the work centre and hence there was no admissible means of control other than external surveillance of the worker due to the suspicion that he was committing a breach of the work assigned to him, a reference cannot be randomly made to the worker’s personal dignity and, much less so, to his personal privacy because to sustain the opposite would mean the right held by the company for its management would make no sense at all. 

Nevertheless, the private detective’s report consisted of evidence that had already been assessed by the lower court, resulting in its assessment in an extraordinary appeal not being allowed and since this was the only evidence submitted by the company to justify the dismissal the dismissal was finally ruled unfair due to the impossibility to analyse such evidence, even though the Chamber deemed it was valid and no fundamental rights had been violated.


Author: Lara Conde, Labour lawyer at RSM