Labor control with cameras is legal only if the company informs the employee

 One of the areas in which the emergence of new technologies is causing greater litigation is that of labor relations, with particular emphasis on the limits of the control that the employer can exercise over the activity of workers. In this regard, in recent years, video surveillance of workers within companies has been particularly controversial. So much so, that the new Organic Law on Data Protection (illuminated in the light of European regulations), in force since December, expressly regulates how this practice should be carried out in its article 89. A few days ago, a court in Pamplona issued the first sentence (which you can consult here) based on the new regulations.

In the case under trial, the disciplinary dismissal of an employee who is caught on camera fighting with another employee in the company's parking lot is analyzed. The worker challenged the evidence based on the images, arguing that the company had not informed about the purpose of the recording system, an allegation that the judge accepted, declaring the videos null and void. However, since there were witnesses who accredited the dispute, he declared the dismissal valid.

What requirements must a video surveillance system meet in order to be legally employed to monitor workers? Taking up the doctrine of the European Court of Human Rights (ECtHR), the new organic law determines that employers "must inform workers in advance, and in an express, clear and concise manner," of two circumstances. The first is the installation of the security cameras themselves, and the second is that the images they capture may be used for labor control purposes. The duty of information, therefore, is twofold, and it is not understood to be satisfied if the company merely places a generic information poster next to the circuit, but must also warn the staff of the recording may lead to disciplinary action.

Ricardo Fortún, attorney of Ejaso ETL Global, points out that this is the point where companies usually falter. "It is common that when they install the cameras, they do not consider that they can be used to control and sanction the employees"; therefore, since they have not warned the workers, the evidence obtained by them is not valid and cannot support a disciplinary process.

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In the same vein, the Pamplona court emphasizes in its ruling, "covert or hidden recordings are absolutely forbidden, which is as much as saying not informed". Another of the most common judgments, according to Gema Luna, Lean's lawyer, is the recording in not allowed areas, such as dressing rooms or bathrooms, which "violates the worker's right to privacy".

Both attorneys insist that the company must personally inform each worker, as well as the union representatives, by means that prove the receipt of such communication.

Controversy

There is a particularly controversial point in relation to video surveillance at work that the new organic law not only fails to solve but also feeds: what if what the cameras capture is a crime (the theft of company material, for example)? Are the same requirements regarding the information that should have been given to employees maintained in this case?

In 2017, the Supreme Court declared that, in the event of a crime, it was sufficient, for the evidence to be valid, that the worker knew about the installation of the cameras. The new organic law seems to add to this thesis by stating that if "the flagrant commission of an unlawful act" has been caught (it does not even circumscribe it to crimes), the duty to inform is understood to be fulfilled if there is notice of the existence of the video surveillance.

The court of Pamplona, however, rejects the admissibility of this reduction of guarantees. "It is convenient not to confuse the legitimacy of the end with the constitutionality of the means to achieve it," it warns, in defense of fundamental rights deltaeye

WHEN SHOULD IT BE COMMUNICATED

Previously. The Organic Law on Data Protection requires that the information be given to the worker "in advance". This implies that the communication must take place either when the cameras are installed, if the company did not previously have a video surveillance system, or at the time the employee joins the company. Likewise, if irregularities are suspected and, as a result of them, the circuit is implanted, that will be the moment when it must be notified, and the company cannot use it in a hidden way.

Prevalence. In spite of the contradiction contained in the law regarding "illicit acts", the judge in Pamplona reminds us of the prevalence of the legislation