The story takes place in a medium-sized company, and the central characters are an office employee (Ms. A) who has a romantic relationship with a co-worker, an overconfident employer (company B), and an illegal video surveillance system.
Ms. A and her co-worker seized a number of opportunities to give vent to their feelings inside the premises of company B. It turns out that these intimate moments were recorded by the video surveillance system of the company, and, without the consent or knowledge of the couple, that footage was involuntarily shared with the employer.
At some stage, the manager of company B confronts Ms. A with the existence of this footage and allegedly drives her to resign.
Ms. A counterattacks and takes the decision to terminate the employment contract with just cause, for violation of her fundamental rights and guarantees.
Both courts of first instance and appeal gave reason to Ms. A. and sentenced company B to pay her a compensation.
According to the facts found proven by the Court:
- Ms. A worked as an office employee for Company B for about 15 years;
- On a not ascertained date, Company B installed in its premises a video surveillance system;
- The placement of the system was witnessed by Ms. A and other employees;
- Through this equipment, for several months, the employer recorded images inside the rooms of the company, including activities of sexual nature performed by Ms. A and another co-worker, during and after her working hours;
- The video surveillance system was installed without prior authorization of the Portuguese Data Protection Authority (hereinafter CNPD);
- At some point in 2010, the company manager had a meeting with Ms. A and told her that he had footage of intimate encounters inside the premises of the company;
- Following this communication, the Employer initiated disciplinary proceedings against Ms. A, based on those facts and sent her an offence report, by post;
- On the same date that the company sends the said offence report, Ms. A delivers the employer a letter of termination of her employment contract with immediate effect and just cause.
In brief and inter alia, Ms. A alleges serious violations of her legal guarantees, offence to her moral integrity, freedom and honour and says she was victim of “sexual-oriented behaviours, which determined her freedom, honour and dignity (...) due to the fact that the employer caught her on video at her workplace and during her resting periods, furthermore threatening the said employee with the disclosure of that footage (which she was completely unaware of) should she want to exercise her rights”.
Below we shall see what is the legal protection granted to company B and to Ms. A.
- Was Company B allowed to install a surveillance system at the workplace?
Yes. According to Portuguese law, the employer is permitted to install video surveillance systems in the workplace provided that the requirements under the Data Protection Act and articles 20. and 21. of the Labour Code, are met.
The installation of any system for recording images and/or sound in the workplace depends on prior authorization of the CNPD.
Among other requirements, this request must indicate the purposes of the surveillance system; the entity/individual responsible for processing the recordings of images/sound; the identification of any third parties who may have access to the recordings; the system features (number and location of cameras and recording equipment); form of access to recordings by third parties; and existence of the workers representative body.
Company B failed to prove in court that it had submitted the said application to the CNPD, before or after the installation of the surveillance system.
- The surveillance system installation is authorized for any purposes?
No. The authorization given by CNPD for the installation of video surveillance systems in workplaces is limited exclusively to protection of persons and property purposes.
In this case, the behaviour allegedly attributed to Ms. A - intimate relationship inside the premises of company B - is not a threat to persons and/or property.
- Even if such request had been presented, and if it had been authorized by the CNDP, would the alleged recordings of Ms. A with another colleague be sufficient evidence to initiate disciplinary proceedings against her?
The answer is negative. Thus, it is prohibited to record images to monitor the performance of the employees (Article 20. º n. 1 of the Labour Code); and workplaces subject to surveillance should be complied with the said obligation stated in Art. 20 nr. 3 of the Labour Code.
As stated in the judgment in question, it is not enough that workers witnessed the installation of the system because (…) this duty includes information about the purpose of the recordings, its scope, in terms of sound and image, as well as the display of a written warning, in addition to information on the period of time of conservation of the recordings, facts the defendant failed to prove (...). Hidden recording is prohibited without the workers' knowledge and without authorization of the Data Protection Authority, which is granted in line with the principles of necessity, appropriateness and proportionality. (...) Not being in compliance with the legal requirements, the evidences thus obtained are illegal and cannot be used in the scope of disciplinary procedure, determining in case of dismissal, the unlawfulness of the dismissal.
Therefore, in the presented case, a disciplinary procedure against Ms. A - to be valid - should be based on other types of evidence, such as witnesses.
- Can images/sound recorded by a non-authorized surveillance system be used as evidence?
As a rule, the answer is no. The exception to this rule applies only to the most serious situations, for example, crime prevention, security of individuals and property, in the scope of criminal proceedings and as long as it is not considered an invasion of the intimate life of the individual or individuals at hand.
- What about the termination of the employment contract by Ms. A?
The Employee is entitled to terminate the employment contract with just cause and compensation, provided that the requirements stated on article 394. of the Labour Code are met.
The intentional behaviour of the employer which, due to its seriousness and consequences, makes immediately and practically impossible to maintain the labour relationship, entitles the employee to terminate the contract with just cause to and to claim a compensation. The burden of proof regarding the behaviour of the employer lies with the employee, in accordance with Article 342 º, nr. 1 of the Civil Code.
In the analysis of the dispute between the two parties – Ms. A and company B, the Court concluded the following:
“[By maintaining] love encounters at the workplace, including a sexual relationship with a co-worker, she might have breached duties of loyalty, courtesy and respect regarding the Employer (which did not been assessed in this case and does not entitle, de per se, a dismissal). However, by way of making the recordings through a video surveillance system, the invasion of the intimate life of the Employee results in violating personal rights, which by their nature are absolute and outweigh any potential rights of the Employer (…) . Moreover, since the evidence was obtained by illegal means, in any case, whatever the Employer claims would not succeed.”
In conclusion what we take from this case is that:
- Images/sound recorded by a video surveillance system installed without authorization from the CNPD are generally useless as evidence, in the scope of disciplinary proceedings.
- Images/sound recorded by a video surveillance system installed with the permission of the CNPD cannot be used to track the performance of workers, and are null and void evidence, in the scope of disciplinary proceedings.
- Images or sound of workers’ activities recorded by a video surveillance system, authorized or not, inside the workplace, for purposes other than the security of persons or property is likely to constitute an invasion of privacy and a violation of personality rights and consequently constitute grounds for the termination of the employment contract with just cause, and entitles the employee to a compensation.