Lawfulness of the register of lockers or personal belongings of an employee
Article 18 of the Workers’ Statute. Commentary on judgment (Social chamber), Secc. 1.ª, n.º 874/2024, of 5 June.
This publication comments the judgment (social chamber), Secc. 1.ª, n.º 874/2024, of 5 June, which analyses the validity or nullity of the dismissal of an employee who was registered by a security guard at the exit of a renowned shopping centre without the presence of a legal representative of the workers or another employee.
Lawfulness of the register of lockers or personal belongings to an employee. Article 18 of the Workers’ Statute.
Commentary on Judgement (Social chamber), Secc. 1.ª, n.º 874/2024, of 5 June.
By means of Judgement no. 874/2024, of 5 June, the 1st Section of the Social Chamber of the Supreme Court has dismissed the appeal and confirmed the Judgment handed down by the High Court of Justice of Andalusia, which annulled the decision handed down by the Social Court no. 3 of Huelva, considering the dismissal of an employee of a renowned shopping centre to be unjustified.
The complainant was dismissed on disciplinary grounds for being intercepted in mid-January 2020 at the exit door of the shopping centre with goods from the shopping centre. Specifically, the alarm went off and the security guard registered her personal bag and found that she was carrying four sales items inside. These were protein bars, snacks and dog shampoo of little economic value. He asked her to show the purchase receipts, without the presence of a legal representative or employee of the company.
The company then checked the security cameras and was able to establish that the employee had stolen the aforementioned products from the premises. Thus, it proceeded to the disciplinary dismissal of the employee, justifying it on the grounds of a very serious misconduct provided for in its internal regulations and the applicable collective agreement, as well as in article 54.2 d) of the Workers’ Statute.
A disciplinary dismissal lawsuit was filed and, subsequently, a conciliation was held without agreenebt, and the dismissal was finally declared null and void by the Social Chamber of the High Court of Justice of Andalusia, which was appealed by the company’s defence.
In the judgment under analysis, the focus is on whether the search of the employee’s personal bag is lawful, when there is no record of the presence of a legal representative of the workers or another employee. The High Court of Justice of Andalusia made it clear that this is unlawful and that, therefore, the theft in question would not be evidence in favour of the company, nor would it justify the disciplinary dismissal, and the dismissal of the employee would be null and void.
However, the procedural representation of the company alleges infringement of article 18 of the Workers’ Statute as it considers that there was no search of the employee’s belongings, but that the security alarms simply went off and that the employee voluntarily agreed to show the guard the contents of her bag, which is why, in its opinion, the evidence would be valid despite the lack of a legal representative. The appeal is based on the Judgement of the High Court of Justice of Catalonia no. 6486/2018 of 11th December, in a case in which, in accordance with the triple identity of facts, grounds and claims, according to the appellant company, the dismissal was considered to be fair.
Recall that Article 18.1 of the Workers ‘Statute requires the presence of one or more persons (workers’ representative or employee) at the search of workers’ personal effects in their lockers or private effects.
Likewise, the ruling in question considers that the search carried out by the company is a kind of ‘private police’ and constitutes an exception to the ordinary regime of article 545 and following of the Criminal Procedure Act, making special reference to the jurisprudence of our Constitutional Court in which full respect for the worker’s right to privacy (art. 18.1 of the Spanish Constitution) is required in the framework of labour relations.
On the other hand, it argues that the presence of an employee or employee representative in the course of the search is not a guarantee of respect for the employee’s privacy, but of the objectivity and effectiveness of the evidence in the presence of an impartial third party.
For all of the above reasons, the Supreme Court clarifies that ‘a worker’s handbag is her personal property for the purposes of the guarantee of art. 18 of the ET’. And, thus, it dismissed the appeal brought by the appellant, on the grounds that the search was carried out by a security guard, without the presence of a legal representative of the workers or another worker of the company, in breach of the requirements of article 18 of the Workers’ Statute, without any justification whatsoever.
Thus, the Chamber concludes that the failure to comply with the aforementioned legal provision without justification prevents the evidence obtained from the theft from having evidential effects. Consequently, it classifies the dismissal as unfair.
Clara Tomàs Vaqués
Attorney