The Supreme Court has upheld the dismissal on disciplinary grounds of an employee for consuming products belonging to the supermarket in which she worked. The Court believed the use of CCTV evidence to be appropriate since the desired objective was achieved without infringing personal privacy, and due to the fact that employees were aware the cameras had been installed.
Judgment delivered by the Supreme Court on 7 July 2016
The employee was dismissed on disciplinary grounds for eating two packets of cured meat sold at the supermarket in which she worked. Specifically, while pushing a trolley full of boxes to be put into a packing machine, the employee removed a packet of cured meat and began to eat the product immediately, leaving the packet on the returns desk and subsequently consuming the entire contents thereof. She then performed identical actions, consuming a second helping of the same product and discarding the empty packet.
The issue subject to analysis by the Supreme Court is whether the alleged facts may be verified by evidence obtained via CCTV. The factual description of the case indicates that the company had installed cameras in the storage and other areas, excluding the toilets, changing rooms and office. All employees were made aware of such installation, and signs were placed to advise of the existence of CCTV.
In this regard, the Court affirms that the concept of any measure restricting fundamental rights is determined by the strict observance of the principle of proportionality. For the sake of verifying whether a measure restricting a fundamental right exceeds the judgement of proportionality, it is necessary to assess whether it fulfils the following three requirements or conditions: if such measure is subject to achieving the desired objective – judgement of eligibility–; if, furthermore, it is necessary in the sense that there are no other softer measures to achieve the objective with the same effect –judgement of necessity–; and, lastly, if the measure is weighted or balanced, where more benefits or advantages may be obtained for general interest than harm to other assets or values in dispute –judgement of proportionality in the strictest sense–.
In the analysed case, the three conditions are deemed to have been met: the presence of the cameras suggests the purpose of protecting the company’s assets, and the recording of any actions which go against such objective place all personas within the premises as under suspicion, i.e. the reason cameras are installed. In accordance with the parameters of constitutional case law, there is no denying –by using the disputed evidence– the merits of proportionality, given that there is no more suitable measure to uncover the origin of losses, nor a softer measure in the achievement of the desired objective.
In short, the CCTV had been used in an appropriate manner. The achievement of the objective aligns to the reasonable requirements regarding the respect of privacy without creating a situation of defencelessness, since the punished action takes place under the framework of the assumed risks: that of observation via technological means, of which people are made aware, aimed at preventing activities which lead to significant economic losses.