Spain: Turn Of The Screw In The Doctrine Of The Supreme Court Of Justice Of Madrid With Respect To Temporary Video Surveillance Cameras

About the High Court of Justice of Madrid sentence dated February 7, 2018 (Mutua Cualtis Case)

One of the most talked about matters since we began to advertise Employment Commentaries is the treatment given by the Social Order Courts to the installation of video surveillance cameras, whether they are permanent and visible or hidden and temporary.

On October 21st, 2016, we developed comments on "Video surveillance cameras and the recent jurisprudential doctrine of the Supreme Court" and on March 14th 2017, new comments under the headline "The Supreme Court admits permanent video surveillance camera recordings as evidence for disciplinary dismissal for unlawful acts of employees.

The events lead us to return to this matter, and this is in response to the recent judgment of the Social Chamber of the Supreme Court of Justice of Madrid dated 7 February 2018 (RS 1268/2017; Mutua Cualtis Case) confirming the inappropriateness of a disciplinary dismissal, not only for the prescription of the misdemeanours, but also on the basis of the constitutional jurisprudence and the ECHR of 9th June 2016, by stressing that the applicant's right to "private life" would have been violated. The decision of the trial judge not to admit the evidence of recordings made by hidden and temporary video surveillance cameras (period from 15-5 to 13-7-2016) was validated.

In this case, the purpose of establishing the video surveillance system was due to the improper use by some workers of the cards that were given to customers who came to the company for medical check-ups and which they used to buy products from the vending machines.

As noted in the LB II of the High Court of Justice of Madrid sentence:

"The plaintiff worker was not informed that video-surveillance cameras would be installed in the breakfast rooms, first and second floors, nor that any sign had been affixed to advertise them or that they were perceptible or had been communicated to the workers' representatives, and the plaintiff was not. Rather, as described in the facts of the judgment at first instance, its installation was completely unknown; both for lack of information on its placement and because it was not visualized, and there was a manifest intention on the part of the company that its existence and use should be unknown". 

We do not know whether the aforementioned ruling is final, but its doctrine is in frank and open contradiction with previous similar judicial precedents of the Madrid Territorial Court itself, in which the use of video surveillance camera systems has been dealt with, in its temporary rather than permanent connotation.

In fact, the Supreme Court of Justice of Madrid in its judgment of 21 January 2016 (Alcampo case; RS 634/2015) assumed that any measure restricting fundamental rights was determined by strict observance of the principle of proportionality, and it was necessary to determine whether it met the following three conditions:

1.- Whether such a measure is likely to achieve the proposed objective (suitability assessment).

2.- If, in addition, it is necessary, in the sense that there is no other more moderate measure for the attainment of that purpose with equal effectiveness (judgment of necessity).

3.- And, finally, if it is weighted or balanced, because it derives more benefits or advantages for the general interest than damage to other conflicting goods or values (proportionality judgment in the strict sense).

To finally give full legality to the temporary recordings made stating that in the case analyzed:

"The placement of a camera to record the activity that was carried out, where appropriate, within the premises or warehouse - where the trays in which the fish and butchery products are packed are kept, as well as the paper used to wrap the charcuterie products - in order to find out the facts that were happening, which affected the safety and hygiene of the packaging and paper, which were then used for the preparation and packaging of the food that was then put on sale, should be considered as an ideal, justified and proportional measure, in view of the fact that remains of urine were found in a storage unit for the aforementioned containers, which was normally closed, and in view of the suspicion that a company employee was carrying out his or her needs inside the unit, as it had already been verified in advance, the appearance of remains of urine inside the storage unit, without it being possible to establish with certainty, the origin of the remains that were later found, and until they were subsequently cleaned, on the floor, pallets, containers, paper and other belongings, which were stored there.

The recording was also necessary in order to obtain the necessary evidence to accredit such improper and irregular conduct, the authorship of which was unknown to the company, especially in view of the obligation to provide effective protection in the area of occupational health and safety and hygiene, imposed on the company by Law 31/1995 on the Prevention of Occupational Hazards, as well as those derived from the obligations legally imposed on the company in the area of food safety and consumer rights".

The same doctrine sat in the Supreme Court of Justice of Madrid on December 29th, 2015 (RS 487/2015), by giving full validity to a temporary recording system motivated by the concealment and disguise tactics that the actor had been using to do so repeatedly with part of the proceeds of the box and in the absence of any other alternative means with which to expose the transgressive conduct.

Other Social Chambers of different Supreme Courts have reached the same conclusion about the legality of the installation of temporary video surveillance cameras, without the knowledge and information of the workers, when the proportionality judgment was exceeded.

An excellent example is the file analysed in the Supreme Court of Justice of Murcia of 22 February 2016 (Ferrovial case; RS 714/2015):

"in view of the well-founded suspicions of irregularity in the applicant worker's compliance with his work obligations, the recording of images at the workplace on 14th November 2014, at 9 p.m., by the private detective hired by the defendant company does not infringe article 18.1, as it was a justified measure (since there were reasonable grounds for suspecting that the appellant had committed serious irregularities at his workplace); it was appropriate for the purpose intended by the company (to verify whether the employee was actually committing the suspected irregularities and, if so, to take appropriate disciplinary action); (since the recording would serve as evidence of such irregularities); and balanced (since the recording of images was limited to the area in which he was working and was carried out for a limited period of time, sufficient to verify that it was not an isolated event or a confusion. (...)"

On the occasion of the complaint that the one-off recording infringed the so-called right to "computer privacy" contained in Article 18.4 of the EC, when it states, "The law shall limit the use of computers to guarantee the honour and personal and family privacy of citizens and the full exercise of their rights", the Supreme Court of Justice of Murcia is categorical:

"On the other hand, in the present case, there is no permanent video surveillance system of the workplace installed by the company, but a punctual and time-limited recording of images of a specific worker by a detective, which does not meet the criteria for classification as a personal data file and unless the defendant company is the owner of the file, nor the party responsible for or in charge of processing the data."

The majority doctrine is in line with that contained in High Court Judgement 186/2000, of 10 July (Ensidesa; RA 2662/1997) when it pointed out that, on the 'absence of information', the fact that the temporary installation of a CCTV system was not previously notified to the Works Council and the workers concerned (no doubt due to the company's justified fear that knowledge of the existence of the filming system would frustrate the desired purpose) was of no importance from a constitutional point of view, since the Works Council's prior report was or was not required in the light of Article 2(2)(1) of the EC Treaty. 64.1.3 d) of the Workers' Statute, it would in any case be a question of mere ordinary legality. 

And also in the speech, among others, of the High Court Sentences of the Valencian Community of February 8, 2017 (RS 3428/2017) and Andalucía (Málaga) of January 17, 2018 (RS 1878/2017), when both temporary recordings were validated, emphasizing that the employer does not need the consent of the worker, nor does the duty of information persist, in both cases dealing with a punctual and temporary installation of cameras, after proven reasonable suspicions of breach of contract and with the sole purpose of verifying such events.

By way of a recap. We will have to wait if the doctrine of the Madrid High Court Judgement of February 7th, 2018 is confirmed by a possible future ruling of the Supreme Court or if it is consolidated by future judicial rulings of the same Social Chamber.

Having said the above and without prejudice to the fact that the necessary specific case will have to be analysed (individualising criterion), the necessary reflection to be made is whether, in the presence of reasonable and obvious suspicions of serious irregularities in the workplace on the part of a worker's part, a temporary image recording measure is, a priori, fully balanced or proportional in order to verify the reality of the facts committed (it is not possible to do so in any other less onerous way) and is not legally enforceable (the purpose of the investigation would also be frustrated): i) that the employee concerned be informed that video surveillance cameras were to be installed; ii) that no signs were put up to warn them; or that they be communicated to the workers' legal representatives.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions