Spanish Decision May Mean Tougher Video-Surveillance Rules

 

By Dinah Wisenberg Brin September 20, 2019
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​An employer in Spain may not be able to fire a worker caught on a surveillance camera doing something prohibited if the company hasn't informed workers about the video system and its purpose, according to a recent trial court decision.

In a case involving an employee fired after a security camera captured him in a parking-lot fight after work hours, a Pamplona labor court ruled that the video evidence was inadmissible under the European Union's General Data Protection Regulation (GDPR) and case law from the European Court of Human Rights (ECHR).

"The judgment is of great interest since it is the first ruling by a Spanish court on the validity that can be given to the evidence of video recordings after the publication of the new Spanish Data Protection Law and also an interpretation of the new European Data Protection Regulation," according to a blog post from Manuel Vargas of Barcelona's Marti & Associats law firm.

Under Spain's own data-protection law, employers who record a worker doing something illegal are considered to have fulfilled their duty to inform so long as they have posted a sign identifying a video surveillance zone, Vargas wrote. He also noted that recent case law from the Spanish Supreme Court endorses the idea that employers aren't obligated to notify workers that they plan to use video cameras to monitor their activity for possible disciplinary purposes.

GDPR Requirements Apply, Court Decides

The Pamplona court ruled, however, that the GDPR takes precedence over Spanish law, attorneys from CMS Albiñana & Suárez de Lezo wrote in a blog post on the case. Under the GDPR, companies must let employees know when installing video surveillance systems and provide related information, including notice of the system's purpose, they wrote.

ECHR case law also requires clear notification to employees, including information on the surveillance system's purpose and workers' rights regarding cameras, the CMS Albiñana & Suárez de Lezo lawyers noted. "By strictly imposing a duty on employers to provide information, the ECHR case law contrasts with that of the Spanish Constitutional Court, whose rulings should, in theory, align with those of the European Union," they said.

The Pamplona court, while excluding the video evidence, did consider the employee's termination valid, based on witness testimony.

Raquel Flórez, a Freshfields Bruckhaus Deringer attorney in Madrid, emphasized that the decision came from the initial trial court and could be appealed.

The decision may further limit employers' ability to monitor employee performance, as the court ruled that even if Spanish legislation supported the employer's position in the case, it would be invalid because it contravenes the GDPR, according to Flórez.

It remains to be seen if other courts agree with the Pamplona court, she said.

[SHRM members-only toolkit: Managing Workplace Monitoring and Surveillance]

Warn Employees About Installation of Cameras

To reduce the risk of a court declaring such evidence inadmissible, employers should include in employment contracts warnings to employees about the installation of video cameras, making clear that the recordings may be used for disciplinary purposes, advised Almudena Álvarez, an attorney with Álvarez Lentner in Madrid.

According to the Pamplona ruling, the secret installation of video cameras with the sole purpose of confirming suspicions about an employee's misconduct would be illegal and therefore the recordings would be inadmissible in courts, she said.

In this case, the employer had no suspicions about a particular worker, but the judge addressed this issue and argued that even if it had, the secret installation of video surveillance would no longer be allowed because the GDPR does not provide any exception for such cases, Álvarez added.

Higher Court's Contrary Ruling

This decision, however, is likely not the last word on the matter, according to Álvarez, who cited a contrary ruling from a higher court.

A Dec. 11, 2018, judgment from the appellate court in Spain's Basque Country found that when a conflict arises between two fundamental rights—such as personal data protection for employees versus a company's right to surveil employees' work—a proportionality test must help assess whether the company's means of pursuing its goal took precedence over a violation of data protection rules.

Although the ruling stemmed from a case whose facts occurred before the GDPR went into effect, its reasoning may still be valid, she said.

Under a proportionality test, three criteria must be met, according to Álvarez. The employer would have to prove:

  • Suitability, that is, whether the measures taken, such as video camera installation, would help the company confirm its suspicion of wrongdoing.
  • Necessity, that there are no other, less-intrusive means to achieve that purpose.
  • Proportionality, or whether the employer's interest in controlling fulfillment of the employment contract outweighs a relatively small violation of the employee's privacy right.

"Fundamental rights are not absolute, and reasonable restrictions can be applied," Álvarez said. "We will have to wait for the higher courts to decide on this matter."

Dinah Wisenberg Brin is a freelance reporter and writer based in Philadelphia.


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