In a 21 July 2021 judgment,(1) the Supreme Court had to decide whether a recording that had been obtained through a video surveillance system could be admitted as evidence in court proceedings. In the case at hand, the employee was aware of the recording's existence but had not been informed that the specific purpose of the video surveillance system was to monitor the employee's work activity.


The case concerned an employee who provided services for a security company at the main entrance of a car park.

Due to the terror threat level at the time, the employee was required to carry out random vehicle inspections and to fill out the necessary forms to declare that such inspections had been carried out.

From 10 February 2017 to 15 February 2017, the employee submitted forms to the company in which he stated that he had inspected several vehicles. These forms specified the model, make and registration number of the vehicles, as well as the time the inspection had been conducted.

However, a client of the security company lodged a complaint, alleging that the vehicle checks had not been carried out by the employees who were assigned to the security service. Consequently, the company proceeded to inspect the recordings made by security cameras installed at the car park's main entrance.

The company found that the information contained in the forms that had been submitted by several employees was false; many of the inspections had not taken place. Therefore, the company carried out several disciplinary dismissals and imposed penalties on the security service's employees.

One of the employees subsequently filed a claim against his dismissal.


Both Labour Court No. 40 of Madrid and the High Court of Justice of Madrid declared the dismissal to be unjustified on the grounds that the evidence was invalid, as it had been obtained in violation of the employee's fundamental rights; therefore, the employee's alleged misconduct could not be proven.

The High Court of Madrid applied the doctrine of the European Court of Human Rights' judgment in López Ribalda I, in which the Court had determined that the validity of video surveillance recordings as evidence depended on the employees' knowledge that the presence of surveillance cameras was not only to control access to the car park but also to monitor work activity. The security company appealed the decision of the High Court of Madrid for the unification of doctrine.

The Supreme Court explained in its judgment that when the appealed judgment had been issued, the applicable doctrine was based on the Grand Chamber of the European Court of Human Rights' decision in López Ribalda II, which had changed the criterion that had been set out in López Ribalda I. This judgment considered that when an employee is aware of the existence of a video surveillance control system, it is necessary to analyse the proportionality of the monitoring carried out before declaring the violation of the fundamental right to privacy, which is provided for in article 8 of the European Charter of Human Rights.

In light of this doctrine and the Constitutional Court's corresponding judgment of 3 March 2016, the Supreme Court ordered a retrial that permitted the recordings as evidence. The Labour Court considered that the company had sufficiently proved that its employees had been aware of the existence of the cameras and that the proportionality test applicable to the claims regarding a violation of the right to privacy had been passed.

Despite this, the Supreme Court warned that although the proof was valid from an employment law perspective, the company had not infringed any data protection laws by not having correctly informed all employees of the exact purpose of the surveillance tools. However, this matter did not fall under the jurisdiction of the labour courts.

For further information on this topic please contact Elena Esparza or Helena Monzón at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] or [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.


(1) JUR/2021/239762.