The Constitutional Court and the Supreme Court in Spain have recently delivered two important judgments on employment matters

By Miguel Pastur


Ruling issued by the Spanish Constitutional Court on video surveillance

In a judgment dated on 3rd March 2016, the Constitutional Court has ruled that employees may be subject to video monitoring, even if they have not been provided with express advanced warning, which implies a change from its prior positions. However, the judgment counts with two dissenting votes.

In this instant case, the employee in question worked at a clothing store. Several irregularities were detected in the cash register where the employee worked and the company decided to install a video surveillance system. Employees were not given any warning. However, a sign stating that video surveillance was in operation had been placed in a visible location in the store. The recordings showed that the employee had been misappropriating cash from the register, and consequently, the company dismissed her following a disciplinary procedure. The employee brought a claim on the basis that her fundamental rights had been breached by the employer's use of the video surveillance.

In a thorough analysis of the facts of the case, the Constitutional Court confirmed that, with regard to personal data protection, employer's need to obtain employees' consent when installing video surveillance if its installation, and processing of employee data obtained by video, has a legitimate purpose to control the activity of employees. However, employer's still have a duty to inform employees prior to the implementation of such video surveillance. Notwithstanding this, the Constitutional Court dismissed the employee's claim for the following reasons:

  1. The employer's obligation to give the employee prior notice of the fact video surveillance was in operation had been fulfilled by the use of the information sign, which had been placed in a noticeable location so that she could be aware of the existence of the video surveillance and its purpose; and
  2. The employer's decision to use video monitoring was proportionate:
    1. Justified: the use of the video surveillance was decided on the reasonable suspicion that some of the employees were misappropriating cash from the cash register;
    2. Appropriate: the purpose was to verify if the irregularities were committed by some of the employees, and if so, to adopt the respective disciplinary measures;
    3. Necessary: video surveillance would serve as evidence of those irregularities;
    4. Balanced: the image recording was limited to the zone where the cash register was located.
Ruling of the Spanish Supreme Court on the calculation of severance payments for unfair dismissals

On 18th February 2016, the Spanish Supreme Court delivered a judgment relating to the calculation of severance payments for unfair dismissals for employment contracts dated before 12th February 2012 (when Spanish severance regulations were subject to major changes). This judgment rectifies and clarifies previous rulings on the matter (dated on 29th September 2014 and 2nd February 2015), which have now been repealed.

In this judgment, the Supreme Court sets out the legal basis of calculating a severance payment when, as in this case, an employee receives a severance payment of 45 days of salary per each year of service before 12th February 2012 and a further severance payment of 33 days per each year of service after 12th February 2012 until the termination date:

  1. When the severance payments are added together, the total amount cannot exceed 720 days of salary (i.e. the first limit);
  2. If the severance payment for the period of services before 12th February 2012 already exceeds 720 days of salary, the period after 12th February 2012 will not be considered (for severance purposes). 

A second limit would also apply in this case, as the severance accrued in this period until 12th February 2012 cannot be higher than 42 months of salary.

This implies that, on the contrary of the interpretation contained in the ruling on 29th September 2014, in these cases, the severance for the period of services from February 12th February 2012 is excluded from the calculation of severance payment, which cannot be increased further the limits set forth above.