This article establishes a series of requirements for such a search, namely: (i) that the search is necessary to protect the assets of the company or another employee; (ii) that it takes place in the premises of the company and during working hours; (iii) that the employee’s dignity and privacy are respected as much as possible; and (iv) that, if possible, a legal employee representative or, otherwise, another employee of the company is present during the search.
This last requirement was recently the object of a ruling of the Spanish Supreme Court (Tribunal Supremo, TS). In its ruling no. 874/2024 of 5 June 2024, the court brought back this requirement and clarified its scope.
The ruling was based on the following case: The plaintiff (employee) finished her working day and was preparing to leave her workplace (department store) through the staff exit. As she passed the EAS antennas, an alarm sounded and she was requested to do a security check. Security discovered that the employee was carrying four unpaid items the department store sold, totalling EUR 8.72, in her handbag. The employee was asked to show the receipts but failed to do so. After having granted the trade union to which the employee belonged a preliminary hearing, the company handed the employee her disciplinary dismissal.
The employee contested the dismissal. However, the Employment Court No. 3 of Huelva dismissed the claim on 20 October 2020 and declared the dismissal to be fair, without the employee having a right to any severance or salary payment for the period during which the claim was being processed.
The employee lodged an appeal (recurso de suplicación) against this decision with the High Court of Andalusia (Tribunal Superior de Justicia de Andalucía) in Seville. In its judgement 2859/2022 of 26 October 2022, the High Court upheld the appeal and overturned the decision of the employment court. It declared the dismissal null and void and ordered the company to immediately reinstate the employee and pay the salary that had not been paid since the dismissal.
In its ruling, the court argued that the search of the employee’s handbag was carried out without an employee representative or another employee being present. Accordingly, it considered that the search had no probative value regarding the fairness of the dismissal.
Furthermore, in its ruling, the court found that the company had not suffered any economic damage and took the employee’s seniority and her personal circumstances into account.
The company lodged a final appeal (recurso de casación) with the Spanish Supreme Court against this ruling of the High Court of Andalusia, applying for the clarification and settlement of disputed case law in relation to the violation of article 18 ET.
In its final appeal, the company argued that there had been no “search” of the employee’s belongings. Rather, the theft alarm had been triggered and the employee had voluntarily agreed to show the contents of her bag. The company based their arguments on a ruling with the same underlying facts, arguments and legal grounds, but with a contradictory ruling. This second ruling considered that the voluntary nature of the inspection and the statements proved that the lack of presence of a legal representative during the consensual search did not affect the validity of the evidence. Accordingly, it declared the disciplinary dismissal to be fair.
The disputed question underlying the final appeal was thus whether the search of the employee’s handbag due to the theft alarm being triggered at her workplace should be considered inadmissible due to the lack of presence of a statutory employee representative or another employee.
In its ruling no. 874/2024 of 5 June 2024, the Spanish Supreme Court settled this question. It emphasised that the search of the employee’s handbag had not been carried out by an employee of the company, but by an employee of the private security service contracted by the department store. While the regulations applicable to security services allowed them, in general, to carry out searches (“necessary checks”), outsourcing the service in this way did not remove the safeguards established by article 18 ET.
Article 18 ET provided for the guarantee of objectivity and probative value of the evidence by requiring the presence of a third party, whenever possible, who is neither the company nor the employee concerned, may they be a legal employee representative or another employee of the company.
However, at no point did the company put forward a reason that justified the search without the presence of a legal employee representative or another employee. Examining closely the wording of article 18 ET, such presence of a third party is mandatory, “whenever it is possible”, i.e. if there is no justifiable obstacle making it impossible.
The failure of the company or, in this case, of the security service employee who had been contracted (externally) by the company, to comply with this requirement had left the evidence (the search) void of probative value regarding the assessment of the fairness of the dismissal. Hence, the Spanish Supreme Court dismissed the final appeal and confirmed the ruling of the High Court of Andalusia, which had declared the dismissal to be null and void.
Usually, the inadmissibility of the search as proof of the fairness of the dismissal would have led to the dismissal to be classified as unfair (improcedente). According to Spanish employment law, the company could then have decided to reinstate the employee in question or pay them compensation for unfair dismissal. However, the case in question involved an employee who had reduced her worktime to take care of her child. As article 55.5.b) ET foresees strict prerequisites for the dismissal of employees in such circumstances (as well as in other cases), the dismissal was classified as null and void (nulo), obliging the company to reinstate the employee.