The SC considers it justified to record during rest periods
The Supreme Court declared that the dismissal of a bus driver for a series of events captured by the video surveillance camera, some of which occurred during rest time, was justified.
The Supreme Court in its Judgement no. 3789/2021 dated 13 October, issued in a unification of doctrine, considered the recordings made by the company to be lawful and justified, even those made during rest time.
As stated as proven facts in the judgement, the worker worked as a city bus driver, which were equipped with 3 video surveillance cameras, which were known by all the workers and were also marked with the corresponding information sticker.
When the cameras were installed on the buses for the safety of the drivers, it was agreed that they would not record towards the driver’s seat.
In this scenario, the worker was disciplinarily dismissed as a result of a series of events captured by the cameras, in which the driver “on several occasions did not collect the fare from a woman and, during the bus stop, smoked several times inside the bus, urinated outside the bus and touched, caressed and slapped the woman“.
When the dismissal was challenged by the worker, the Social Court’s judgement declared the dismissal to be justified, considering that the recordings were lawful and the breaches described were sufficient to justify the dismissal.
This decision was appealed in appeal and, after hearing the case, the High Court of Justice of Galicia overturned the lower court ruling and declared the dismissal null and void, as it considered that the recordings had not been obtained in a lawful manner, as the fundamental right to privacy (art. 18.2 CE) had been violated due to the breach of the employer’s duty to provide information (art. 18.2 CE) The Supreme Court (SC), in a unification of doctrine, ultimately upheld the ruling of the labour court and the validity of the dismissal, as it understood that the recordings were lawful in that they were justified.
The SC argues that the proof of the reproduction of what was recorded by the cameras was a justified, suitable, necessary and proportionate measure for the purpose pursued, and therefore satisfied the requirements of proportionality imposed by the constitutional case law and the European Court of Human Rights (“López Ribalda I” and “López Ribalda II“), without prejudice, where applicable, to the possible liability of the company as assessed by the Spanish Data Protection Agency for the lack of information provided to the worker.
In this way, the SC went on to establish that, although it was true that some of the unlawful conduct recorded by the cameras took place after the end of one route and before the start of the next, this does not exclude that a driver at that time, when he is inside his bus, “….the Court held that the bus driver’s employer could be guilty of serious and culpable breaches of contract affecting his employment obligations, which justifies the fact that the cameras continued to record during those temporary periods of time.
In any event, the plaintiff allowed a female passenger to travel without a ticket on the bus on several occasions and these are breaches of contract which occurred when he was driving the vehicle”
Finally we must indicate that the facts occurred prior to the entry into force of the new Organic Law 3/2018 on Personal Data Protection, so the judgment was issued taking into account the previous existing legislation on data protection and that is why it cannot be stated that the same resolution can be reached today.
As always, it will have to be analysed and applied on a case-by-case basis.