The full Constitutional Court judgement of 3 March 2016 details and clarifies the doctrine on the scope of information to be provided to workers regarding the use of surveillance cameras to control activity at work.
The present scenario is that of an employee of a commercial establishment fired for appropriating 186, 92€. The company detected irregularities in one of its cash registers through a computer monitoring system, which made them suspect cash appropriation by one of its workers. Therefore, they temporarily installed a camera exclusively for control of the register, without specifically communicating this to the employees but placing a notice advising of the presence of video surveillance in the shop window. The images were used to both discover and prove in court the offence motivating the dismissal, the employee consequently requested its annulment on the grounds of the violation of fundamental rights, a claim rejected by the Employment Court and the High Court of Justice.
The Constitutional Court examines the possible infringement of the right to the protection of personal data (Article 18.4 of the Constitution), the image being considered personal data. The Court starts from the premise that fundamental rights are not absolute but may yield to conflicting constitutionally relevant interests (in the present case, the supervisory powers of the employer found in Article 20.3 of the Statute of Workers, in conjunction with Articles 33 and 38 of the Constitution). According to the Court, in each individual case it is necessary to analyse whether the measure respects the core content of the fundamental right and the strict observance of the principle of proportionality.
The defining elements of the data protection system, as set out in the judgement, are the ability of the affected party to consent or object to the collection and use of their personal data, and their right to be permanently informed about the use and destination of this data. Nevertheless, in the workplace it is only necessary to comply with the duty of prior notification. This is so because Article 6.2 LOPD and 10.3.b. of its implementing Regulation exclude the need for the employee´s express consent to the processing of the necessary data for the maintenance and fulfilment of the employment relationship. In the opinion of the Court, this without a doubt covers data processing directed towards the control of the employee relationship.
With regard to compliance with the duty of prior notification in the present case, the Court considered the placement of the informative sign, as required by Instruction 1/2006 of the Spanish Data Protection Agency, in the window of the establishment to be sufficient for this purpose. This is the most criticised aspect of the judgement, with three judges dissenting on the basis that it contradicts the statements found in recent declarations (for example, the judgement of the Constitutional Court 29/2013 of 11 February and that of the Supreme Court, Social Chamber, of 13 May 2014).
In those judgements, it was considered essential to provide prior notification to the workers´ representatives and employees themselves of both the installation of the cameras as well as their use for controlling activity at work in order to impose disciplinary sanctions and further as evidence in court. However, we must highlight that these judgements deal with the use of video cameras permanently installed as security and surveillance measures for a different purpose. The present Judgement concerns an isolated and temporary installation of a camera upon reasonable suspicion of breach of contract, for the sole purpose of verifying these facts, which can, of course, be equated to the discourse in the STC 186/2000 of 10 July, which validated the actions of the company.
The Court concludes that in addition to not having violated the essential content of the fundamental right, the measure adopted by the company passed the proportionality test and could be justified as appropriate for the intended purpose due to the existence of the prior and reasonable suspicion of the appropriation of money. It was also justified as the purpose of this measure was the verification of the existence of these irregularities in the register and their author, required (for the investigation and proof thereof) and balanced (as the recording of the images was limited to the area of the register), ruling out the existence of the infringement of a fundamental right.
Despite the relevance of the discussed judgement and its utility in cases similar to that presently posed, in our opinion companies intending to use these systems for the purposes of discipline and control of activity at work should remain cautious of the prior notification of employees and their legal representatives. These parties should be notified of both the installation and the use of such devices for these specific purposes, along with the drafting the necessary documents and contractual clauses that allow the scrupulous compliance with the duty of prior notification to be accredited, if necessary.