Companies increasingly make use of the services of private detectives to investigate whether their employees really They are on sick leave or they are faking itwhich would be reason enough to a disciplinary dismissal. According to the detectives themselves, the companies that use their services do so because they previously They already have signs that there is fraud, which is why the majority of cases that are investigated agree with the companies that hire them and end up in disciplinary dismissal.
However, in some cases, the way that evidence is obtained is the key to the success of the case. This is what happened to the employee of a beauty center in Barcelona. Despite being able to prove that there had been fraud, a sentence The Superior Court of Justice of Catalonia declared the dismissal null and void and forced the company to compensate its employee.
Medical leave and dismissal. The employee at the beauty center went to the doctor because of pain in her left hand and back, and they gave her the temporary disability leavewith rest and rehabilitation to recover. While she was still on sick leave, the company began to suspect that perhaps she was not that sick and decided to hire a private detective to check what she was doing outside of work.
The detective prepared a report in which he noted that the worker had performed a manicure service for which she had charged 35 euros in cash while she was still on sick leave. With that report as a key piece in its argument, the company fired her via disciplinary dismissal, alleging that she had broken trust and that she was taking advantage of her leave to work on her own.
In your dismissal letter you could read: “(…) you summoned, and performed a manicure treatment on, a person who was accompanied by said company (of detectives), at the aforementioned address, and charged this person in cash 35 euros for the service performed. The company has sufficient evidence, images and videos that confirm the regularity of these events.”
What the court decides. The worker appealed the dismissal because she understood that it was unfair and was based on evidence obtained illegally. In the first instance, the Social Court No. 1 of Barcelona agreed with the company and declared that the dismissal was appropriate, and assigned the employee to collect 771.15 euros for untaken vacations plus 10% late payment interest. But did not recognize compensation some.
The story changed when the case reached the Superior Court of Justice of Catalonia (TSJCAT), when the worker appealed that first sentence. The Social Court reviewed how the detective’s evidence had been obtained and concluded that it was invalid because it had been obtained by inducing the situation. That is to say, something that was already happening had not been observed, but rather the opportunity had been created for the employee to do that manicure.
What Detectives Can and Can’t Do. The case puts on the table what private detectives can do when investigating a person on sick leave and what lines they cannot cross. From Sentinel Private Detectivesremember that the law “prohibits them from taking images or evidence of events that occur in the intimate part of people’s lives. The garden is also considered an extension of the home,” so they cannot record there if it is a closed space. The investigation agency points out that their work should focus on “following and observing, without forcing situations,” and that their role is that of “mere observers of facts and behaviors.”
Jordi Briñoldirector of Brininvest Detectiveshighlights that its activity is regulated by the Private Security Law and for the Civil Procedure Law, and that in cases of sick leave they can only act in “open spaces.” According to his explanation, “anything that happens in intimate spaces or that has what is called an expectation of privacy, we cannot access there”, and any monitoring must comply with what he calls “the triple judgment of proportionality”, that is, that the evidence is adequate, necessary and that it does not take longer than reasonable.
The researcher clarifies that they can carry out actions under pretext (for example, making an appointment in a publicly announced consultation), but “we cannot provoke an unnatural response”, which fits with the idea that the person under investigation cannot be induced to commit the infraction.
Why the detective’s evidence is useless. In this case, the court considers that the detective did not limit himself to looking from the outside at what the convalescent employee was doing as his regulations dictate, but that he intervened to make the behavior happen for which she was later punished. Along these lines, the ruling links with the doctrine of the Supreme Court that rejects evidence based on provocation, and remembers that situations cannot be fabricated and then used as an excuse to fire.
By removing the detective’s report from the case, the company’s entire argument collapsed, so the Court understands that the true reason for dismissal is that the worker I was on medical leavesomething that Law 15/2022 prohibits using illness as a reason to dismiss a person because it represents discrimination due to illness.
For this reason, the Superior Court of Justice of Catalonia declares the dismissal void, orders that the company reinstate the employee, pay her all the salaries that she stopped receiving during the time that the judicial process lasted and pay her 7,501 euros for moral damages, in addition to 600 euros in defense fees.
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Image | Unsplash (Behnaz Kh)
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