The Supreme Court has considered as valid evidence the use of the expert and testimonial report of a private detective, in the event of the slightest suspicion or indication, to demonstrate a worker’s non-compliance with employment.
In a ruling which unifies doctrine, the Supreme Court has partially upheld the appeal presented by the cleaning, maintenance and personal care company Zaintzen, a subsidiary of CLECE.
Motivated by suspicions of non-compliance with work, Zaintzen decided to investigate a worker who carried out window cleaning work, for which he used a company vehicle. As a result of the private detective’s investigations, it was found that the employee had committed “a multitude of violations, as well as even a crime against public safety, working and driving under the influence of alcohol and using company tools for his own use” says the sentence.
“The court allows the monitoring carried out by a detective to be used in the event of a mere suspicion or indication, without the need for accreditation or proof of said indication, so it is a very positive ruling for any company,” says the lawyer who represented the company, Irune García-Diego Venegas, who has also achieved compensation of 10,000 euro.
However, he regrets that the high court did not declare the dismissal as appropriate. “We have proven the admissibility of a dismissal thanks to a report from a private detective, but although there is a report from the prosecutor in the procedure followed before the Supreme Court that advocates the declaration of admissibility of the dismissal, the high court does not enter into that issue, indicating that he is not competent to evaluate the evidence, and therefore maintains the classification of inadmissibility that the Bilbao Social Court had declared,” adds the lawyer.
“This court that handed down the first sentence considers that the indications or suspicions prior to the assignment of the private detective have not been proven, so the use of the follow-up evidence by a private detective qualifies it as illicit and considers that it constitutes a violation of the worker’s right to privacy, which is why he declares the dismissal null and void and imposes an additional compensation to the company of €10,000, in addition to the reinstatement of the worker with payment of the processing salaries,” explains the lawyer.
The ruling therefore revokes both the qualification of nullity of the dismissal and the compensation for violation of fundamental rights, qualifying the dismissal as unfair, granting the company the possibility of choosing between ending the worker’s employment relationship with the corresponding legal compensation or proceeding to his readmission.
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