The Supreme Court has considered illegal the photographs that a private detective took of a worker, who was on leave with neck pain, doing hard work in the garden and in the orchard of his house, and which were used by the company to agree his dismissal disciplinary for carrying out activities incompatible with their ailments.
As a consequence of the illegality of the evidence for invading the worker's right to privacy, the court confirms the unfairness of his dismissal and dismisses the company's appeal.
For the Sala de lo Social, the garden of the home is a space that must be included in the concept of the worker's home or, at least, in the concept of other reserved places that can only be entered with the consent of its owner. , or, except in cases of flagrante delicto by judicial resolution.
It indicates that it is an area in which intimate, personal and family life is exercised and that it can remain outside the interference of third parties against the will of its owner. "It is a space in which this also has a legitimate expectation of privacy, although it may be with some less intensity than in the built space other than the garden," the magistrates emphasize.
In his sentence, a presentation by magistrate Ignacio García-Perrote, explains that Private Security Law 5/2014 expressly allows private detectives to carry out inquiries to obtain and provide, on behalf of legitimate third parties, evidence on personal and family life. or social, but expressly excludes "that which takes place in homes or reserved places".
The worker had the category of cleaner and had worked at the Sociedad Tratamiento de Aguas Residuales since 1999. The Prevention Service declared in 2020 that he was a person vulnerable to the coronavirus and advised the company to increase prevention measures with measures such as the implementation of the teleworking, work more than two meters from other people or use of FFP2 masks. Days after this recommendation, the worker took leave from work due to temporary disability with a diagnosis of neck pain.
Two months later, the company handed him a disciplinary dismissal letter that contained a series of facts and actions by the worker that the company considered incompatible with the ailments that caused his absence from work and that made it difficult for him to heal.
Specifically, he had carried out on numerous occasions (for at least seven days and in days of several hours) strenuous work in the garden and orchard of his house, using a shovel and a rake to prepare the soil, painting the roof of a neighbour's building, and a garden fountain, masonry work on a garden wall involving handling tools, bending over and assuming awkward postures, metal fencing work, and debris removal, according to the proven facts.
A Pontevedra Social Court declared the worker's dismissal admissible, but the Galician Superior Court of Justice considered it inadmissible since the only evidence on which it was based was a detective's report, with photographs in which he was seen in the garden of his home, which violated his right to privacy and, furthermore, it was a disproportionate measure. The Supreme Court agrees with the criteria of the sentence under appeal and confirms the unfairness of the dismissal of this worker.
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