Are a detective’s photos valid to justify a disciplinary dismissal?

The case

A worker worked for a company as a cleaner. In April 2020, the company’s prevention service declared him vulnerable to the coronavirus, recommending extreme preventive measures against exposure to the risk. Two days later, the worker went on sick leave with a diagnosis of cervicalgia.

In June 2020, the company gave him a letter of disciplinary dismissal for breach of contractual good faith. He was accused of acts and actions that were incompatible with the ailments that had caused him to take time off work and that would also hinder his recovery.

Specifically, for at least 7 days and for several hours a day, he carried out hard work in the garden and orchard of his home, using a shovel and a rake to prepare the soil, as well as painting the roof of a neighbour’s building and a fountain in the garden, masonry work on a garden wall for which he handled tools, bending down and adopting forced postures, work on a metal fence, and collecting rubble.

The employee brought an action for dismissal. The labour court declared the worker’s dismissal to be justified, but on appeal it was declared unfair as the only evidence consisted of a detective’s report with photographs showing him in the garden of his home, which violated his right to privacy and, furthermore, was a disproportionate measure. Dissatisfied, the worker lodged an appeal in cassation for the unification of doctrine.

The question raised was whether the evidence in the private detective’s report with which the company justified the disciplinary dismissal was valid. Specifically, whether or not the photographs included in the report in which the employee appears in the garden of his private home infringe his fundamental right to privacy.

In order to resolve the question, the Supreme Court recalls that the Private Security Act empowers private investigation services to carry out the necessary investigations to obtain and provide, on behalf of authorised third parties, evidence on private conduct or facts relating, among others, to the field of employment. It also establishes that under no circumstances may the intimate life of persons in their homes or other private places be investigated.

In the case in question, the question is to determine whether the garden is a space that should be included in the concept of the worker’s home. The Supreme Court considers that the answer must be positive, as it is a place that can only be entered with the consent of its owner. It is an area in which intimate, personal and family life is exercised and which can remain free from intrusion by third parties against the will of its owner.

It is a space in which the owner also has a legitimate expectation of privacy, although this may be to a lesser extent than in the built-up space other than the garden. Likewise, there is no evidence that the worker’s garden was visible to anyone who might pass in the vicinity, nor that there were no walls, hedges or fences of any kind that would hinder visibility from the outside.

For all these reasons, the appeal is dismissed and the judgment of the Supreme Court of Justice is upheld.

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