Commentary on STS Social Court 23/2025. Evidential validity of images captured by video surveillance cameras.
This publication discusses Supreme Court Labour Chamber Ruling No. 23/2025, handed down on 14 January 2025. This ruling upholds an appeal for the unification of doctrine filed by the company STRADIVARIUS ESPAÑA S.A. against the ruling handed down on 18 July 2023 by the Social Chamber of the Court of Justice of the Basque Country, which upheld the appeal filed by a worker – who had previously been dismissed – against the judgment dated 23 November 2022 handed down by the Social Court 2 of Donostia (case 531/2022). In the first instance, the dismissal had been declared valid.
The resolution analysed addresses a case of disciplinary dismissal justified by the commission of a very serious infringement of Article 54.2 d) of the Workers’ Statute and Articles 45 and 46 of the applicable collective agreement – the Guipúzcoa Textile Trade Agreement – which the company was able to prove through video surveillance cameras located in the checkout area of the establishment where the dismissed employee worked. The cameras were visible to both customers and employees.
As explained below, the High Court’s ruling examines the requirements that must be met in order to comply with the duty to provide information regarding the use of surveillance devices in the workplace, as provided for in Article 89 of Organic Law 3/2018 of 5 December on the Protection of Personal Data and Guarantee of Digital Rights (hereinafter, LOPD).
The transaction carried out by the dismissed employee was as follows: “On 14/05/2022, she purchased several items of clothing worth 39.98€, paying for them by bank card, and then, on 19/05/2022, without returning the items to the store, she had the amount refunded to her bank card.
To simulate the transaction, she took an alarm from the drawer, rewriting the RFID, and then used the PDA to delete the data from the alarm with which she had made the fraudulent returns, as well as from the one she had not used to carry out the transactions. Two hours later, he made the actual return of other items he had purchased on 14/05/2022, which was later confirmed by viewing the cameras located in the checkout area of the establishment where the events took place.
After the worker was dismissed, she sued the company, requesting that the dismissal be declared null and void. The main argument was that the company had not personally informed the employee of the existence of the video surveillance system, thereby failing to comply with the duty to inform each employee ‘in advance, and in an express, clear and concise manner’, as provided for in Article 89 of the LOPD.
In the first instance, the Labour Court dismissed the claim and declared the dismissal to be fair. The decision was appealed, and the appeal was upheld by the Court of Justice of the Basque Country, which declared the dismissal null and void and ordered the company to reinstate the worker under the same conditions that had been in place prior to the dismissal, all of this on the understanding that the company, by failing to expressly inform each of its employees of the existence of the video surveillance system and its use for labour control purposes, had waived that possibility, which, by virtue of the doctrine of estoppel, prohibited the use of the cameras in this specific case for such purposes, by way of exception. In effect, the fact that they had not been used for this purpose since the entry into force of the LOPD in 2018 would have conditioned the actions of the employees, who did not expect the cameras to be used for such purposes.
In view of the ruling, STRADIVARIUS ESPAÑA S.A. lodged an appeal for unification of doctrine. The appellant argued that the installation of the video surveillance systems had been communicated to the Spanish Data Protection Agency, which had issued a ruling on the registration of the video surveillance file in the General Data Protection Register. It also stated that the Works Council had been duly informed that the video surveillance systems installed would be used for the purpose of monitoring organisational systems and work performanc
The High Court referred to Article 89 of the LOPD, which, in its second paragraph, states the following: ‘in the event that the flagrant commission of an unlawful act by workers or public employees has been captured, the duty to report shall be deemed to have been fulfilled when at least the device referred to in Article 22.4 of this organic law is in place’.
Pursuant to the provisions of Article 22.4 of the LOPD, the Labour Chamber of the Supreme Court considered that the duty to inform had been fulfilled, as it considered that in this specific case a flagrantly unlawful act had been committed. In this regard, the terminology used by the High Court of Justice of the Basque Country is significant, as in its ruling it referred to this circumstance as a ‘breach of contract’ by the employee, not as an ‘unlawful act’. However, given that the facts of the case as set out in the judgment of the court of first instance, which were not challenged on appeal, established that the employee had taken items of clothing without paying for them, the Supreme Court proceeded on the assumption that the employee’s conduct constituted a flagrant case of unlawful action.
Consequently, in the opinion of the High Court, the measure was (i) justified – because there was sufficient circumstantial evidence of irregular conduct by the employee that needed to be verified –, (ii) suitable for the intended purpose, which was to ascertain the possible illegality of the conduct, (iii) necessary, since no other less invasive and equally effective measure could be adopted, and (iv) proportionate, and therefore the violation of the worker’s fundamental right to privacy (Art. 18.1 CE) must be ruled out.
Last but not least, the resolution in question highlights a jurisprudential citation with significant practical implications. It is the following excerpt from Constitutional Court Ruling No. 119/2022: ‘With regard to the installation of video surveillance systems and the use of images for labour control purposes, the processing of such data does not require the express consent of the worker, because it is understood to be implicit in the mere contractual relationship.’ It is therefore sufficient to simply communicate their existence.
Paula Torres
Internal Investigations Department – Molins Defensa Penal