Sergio Gayoso Merino Lawyer and partner of Lawyou [/ caption]
To control compliance with their employees’ labor obligations, companies use video surveillance systems, this measure may include sanction is by government institutions to companies that exceed the uses of their powers and powers in this area.
Installation of a video surveillance system in order to control compliance with labor obligations.
OUTSTANDING RESOLUTIONS OF THE AEPD
The legal basis for monitoring compliance with the obligations entrusted to employees through said system is not that of consent, since this is not freely obtained or provided, nor can it be freely withdrawn without any negative consequence, given the scope of subjection and bonding of the employees.
Workers are almost never in a position to freely give, deny or revoke consent, given the dependency that results from the employer vs. worker relationship.
Article 20.3 of the Workers’ Statute provides: “The employer may adopt the measures that he deems most appropriate of surveillance and control to verify compliance by the worker of his obligations and labor duties, keeping in their adoption and application the consideration due to their human dignity and taking into account the real capacity of disabled workers. ”
The installation for these control purposes must be proportional in terms of the weighting of the power of direction and control of the business activity, with the right to privacy and the right to know and know by the owner, the use that of their data will be made in the employment relationship, as well as predetermine the use and purpose of the data and the headquarters before which to exercise the rights derived from said collection.
The Spanish Constitution states in its article 18.1 and 4: “1. The right to honor, personal and family privacy and self-image is guaranteed. The law will limit the use of information technology to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights “.
The doctrine of the Constitutional Court (STC 142/1993, of April 22 and SSTC 290 and 292/2000, of November 30), maintains that the conclusion of the employment contract does not imply in any way the deprivation for one of the parties, the worker, of the rights that the Constitution recognizes him as a citizen.
It is also applicable for the purpose of using labor control, article 13 of the RGPD on information to be provided to the interested party if the data is obtained from it, as is the case of the installation of cameras for labor control purposes in the workplace. , and this, even if the consent of the worker is not required.
Failure to previously inform the worker about the purpose of controlling their actions through the installation of cameras in the workplace, violates article 18.4 of the Constitution and article 5.1 a of the RGPD. u >
Article 83.5 a) of the RGPD, considers that the infringement of “the basic principles for the treatment, including the conditions for consent under articles 5, 6, 7 and 9” is punishable, in accordance with section 5 of the mentioned Article 83 of the aforementioned Regulation, with administrative fines of € 20,000,000 or, in the case of a company, of an amount equivalent to a maximum of 4% of the total global annual business volume for the financial year above, opting for the highest amount ”.
In RESOLUTION R / 00411/2019 ( https://www.aepd.es/es/documento /ps-00401-2018.pdf ) of the AEPD, the case of a restaurant that used the images of cameras installed in the workplace to punish the conduct of one of its workers is resolved.
The AEPD finally imposed a penalty of € 12,000 on the restaurant (which was reduced by 20% for voluntary payment) for not having previously informed the worker about the use and purposes of control of labor obligations at the time of installation and commissioning of the cameras in the workplace.
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