Spain: a private investigator’s report accepted for the waitress dismissal

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The Spanish courts have recently taken into account a private investigator’s report used to justify an employee’s dismissal. She was working as a waitress in trains, and was not registering some sales to the passengers. Let’s analyze this practical case and see how the French courts would react towards a similar affair.

The employee was a bar waitress in the high-speed trains in Spain. Her employer, a private company doing the catering services in the trains operated by RENFE, was suspecting fraudulent activites on the sales on some specific routes.

The company asked to a private investigation agency to check its suspicions. The private investigators have seen irregularities on several occasions (during four trips spread on a six months period). The waitress was not always registering the snacks and drinks she was selling to the passengers, even if those were paying all the products they were consuming. In some cases, the waitress omitted to enter some of the products on the POS (point-of-sale) terminal for cash payments. In other cases she just canceled the receipts a posteriori.

The private investigators have recorded with a hidden cam the sales and payments done by themselves or other passengers. Transactions have been compared afterwards to the sales tickets provided by the company, and differences have been found out. These differences could not be seen during the cash inventory, because the counted money was corresponding to the cash sales registered by the waitress. The amount paid by the passengers but not registered was then finishing within the waitress pocket.

The Spanish court accepted the private investigators report and validated the waitress dismissal

The employee had contested her dismissal, arguing that she had not been informed that she could be recorded on her workplace.

In its sentence n°3636/2019 of the 8th of July 2019, the social chamber of the High Court of Justice of Catalonia denied the employee’s appeal and validated the dismissal for serious misconduct (theft). The Court took into account the private investigators report and their pictures, considering that the evidence provided was compliant with the three following fundamental principles:

  • adequacy (idoneidad): the services of private investigators were justified by the employer’s suspicions towards its employee
  • necessity (necesidad): the use of a hidden cam was a necessary mean to obtain evidence
  • proportionality (proporcionalidad): the recordings have been focused on the investigations objective, and have been strictly limited to the checkout area

The judge has denied the claim over the videos and pictures legality, specifying that they had not been recorded by the employer itself but by the private investigators.

On top of the images, the judge also took into account the investigations report, the statements of several witnesses, as well as the sales receipts provided by the employer.

What about the same case in France? How would the French courts deal with a similar affair?

If the Spanish court has accepted the evidence provided by the private investigators, we may wonder how would be judged a similar case in France? Similarities exist between both countries, but with differences depending on the relevant jurisdiction.

Criminal vs Labour proceedings: a different approach

In labour matters in France, a strong protection is given to employees and the use of video surveillance systems to control the workers activities is a pretty touchy subject. Many times, the labour courts have rejected evidence when the employees had been recorded without their knowledge. The article L 1222-4 of the French Labour Code point out the need to inform the employees about any device collecting their personal data.

This information must be precise and cleary mention that the images may be used to control their professional activity. It would not be sufficient to only mention the presence of security cams.

In criminal matters, the use of images recorded on the workplace would probably receive a better treatment from judges. After obtaining evidence, the employer will have to file a complaint against the employee in order to open the criminal proceeding.

The criminal proceedings may be quite long. For the employer it is recommended to pronounce the dismissal only if he is sure about the classification of the infringement (in this case the theft) and the high probability of winning the case. Otherwise waiting for the penal sentence of the employee would be a safer option. But the criminal proceeding is also a guarantee for the employer. The res judicata effect of a penal decision must prevent any claim in a civil proceeding by the convicted employee, and he won’t be able to question the dismissal.

The specific case of recording images in a train

In the case of the waitress dismissed for theft in Spain, the pictures and videos had been registered by the private investigators within the train, which was the employee’s workplace.

In France, the legality of the images depends on the place where they have been taken. The article 226-1 of the French Penal Code prohibits “taking pictures of a person without his/her consent while being in a private place”. This implies that taking pictures of a person in a public place is allowed even without the person’s consent.

What about the train? Is it a private or public place? The jurisprudence states that a private place is “not opened to anybody without the authorization of the occupant” (CA Besançon, 05/01/1978). A place open to public is “accessible to anyone, without any specific authorization, the access being permanent and unconditional or subject to some specific conditions” (CA Paris, 19/11/1986). In this way, public transports such as the train, of which the access is possible after buying a train ticket, are considered as places open to public. The Ministry of Justice recalled it answering to a question asked by a senator in 2012. Recording a person without its consent in a train is therefore not prohibited under the article 226-1 of the French Penal Code.

Determining the admissibility of evidence

The evidence must respect some conditions to be admissible. In this aspect the approach is similar in France and Spain. The evidence must respect the principles of loyalty and proportionality.

In the case of the train waitress, we can expect that the private investigators report would be valid in France as it has been in Spain. We have seen that recording within the train was not a violation of privacy. The fact that the investigators have ordered drinks and recorded the transaction could not be considered as an incitement to commit the theft for the waitress. The evidence have been fairly obtained by the private investigators.

Regarding proportionality, the images have been recorded only in the area where the waitress was taking the orders and collecting the payments. The private investigators have controlled the waitress activities during four trips spread on six months. This has been necessary to demonstrate the repetitive nature of the theft. The means used to obtain evidence have been proportional with the infringement.

In a nutshell...

The Spanish courts have accepted the private investigators report used to justify the waitress dismissal. For a similar case in France, we can expect that the evidence provided by the investigators would be admissible in a criminal proceedings. However in a labour proceeding and without a previous penal decision, the employer should first inform his employees that they can be recorded on their workplace in order to control their professional activity.