Are very recurrent consultations professionals workplace received regarding the legal possibilities that companies have within their powers of control and direction in relation to the possibility of installing in their centers cameras work security and surveillance. As a preliminary matter, we must always clarify and discern whether such measures are adopted in places of transit or general stay, as a means of monitoring the company itself, which, as proposed, would not find legal obstacle any for such implementation, or such measures directly affect control over the labor of workers.
Analyzing the issue in its entirety, indicate that Article 20 of the Statute of Workers, hereafter generically ET- contemplates the possibility of control by the employer where the worker’s dignity is respected. Meanwhile the art. 4 ET, determines and establishes the list of basic labor rights of workers.
In this regard, it should be noted that the employer’s management power, essential for the smooth running of productive organization (organization other constitutionally recognized rights reflected in the arts. 33 and 38 EC) and explicitly recognized in that art. 20 ET, attributes the employer, among other powers, to adopt the measures it considers most appropriate surveillance and monitoring to verify compliance with worker labor obligations in its broadest sense.
But this power must occur in any case, as is logical, in due respect for the dignity of workers, as expressly we also recall the labor law, Art. 4.2 c) and 20.3 ET and Protection of the Right to the privacy of the worker. On the other hand, the right to privacy enshrined in art. 18 of the Constitution does not include, in principle, the facts related to social and professional relationships in the workplace, which are beyond the scope of space for personal and family intimacy develops.
In short, the employer is not entitled to freely carry out, under the pretext of monitoring and control powers conferred by art. 20.3 ET, illegitimate in the privacy of their employees in the workplace encroachments. In this sense, they have spoken the Chambers of Social of the High Courts and the Supreme Court itself in many judgments.
What is at issue is therefore to establish a balance between the right of the employer to take the measures it deems appropriate monitoring and control to verify compliance by the worker of their obligations and work duties, and the preservation of rights and fundamental freedoms of the worker.
It specifying the above, the installation of cameras, microphones or other security measures would be allowed provided that the following conditions are met:
- If the measure adds greater control and security to the activity of the company. It is a question, suitable for the intended purpose by the company as necessary and balanced.
- If the installation was known to the workers and the works council before going into operation.
- If these measures are in sight, eliminating any surreptitious attitude of the company.
- If your installation is limited to specific points in the workplace.
- With regard to the particular installation of cameras the limitation that installation is carried out exclusively on it is required workplaces and the films do not have a later broadcast.
The case decided by the Constitutional Court ruling 186/2010 illustrates what is targeted. Indeed, it raises the possible infringement of the right to privacy of the worker as a result of the installation by the company of a CCTV to control certain jobs circuit, consider the High Court which, in the case examined, the measure is justified. First, because “there was reasonable suspicion of the commission by the worker of serious irregularities in the workplace” ; secondly, because ” the measure is suitable for the purpose intended by the company” , i.e. check whether the worker actually committed the suspected irregularities and if so, take appropriate disciplinary action; thirdly, because it was a measure necessary, as the display and recording would provide evidence of such irregularities; and fourthly, because also the decision to install the cameras was balanced by limiting recording images to the area of the box and limited time duration, “enough to prove that this was not an isolated event or confusion but a repeated unlawful conduct “.
In short, a worker’s privacy is not compromised by the mere fact of filming how performs the tasks assigned to him or his job, much less in public places workplace, as can be the dining room or similar places, always that this measure not be arbitrary or capricious nor, nor is it intended to disclose his conduct, but try to get an understanding of what their work behavior.