Once the evidence obtained in violation of the right to personal data protection has been suppressed, there is insufficient background information to prove the imputed conduct.
With the approval of the Personal Data Law, it has become relevant the impact and incidence that this law will have in the labor field. For this purpose, it is useful to know the reality of other legal systems that have regulations and institutions similar to the one that our country will have.
The case we are commenting on in this opportunity refers to a judgment of the Social Chamber of the Superior Court of Justice of Valladolid in Spain (No. 00687/2024) which partially accepted the appeal filed by the plaintiff against the judgment rejecting a claim for unfair dismissal.
The defendant company, after requesting its employees to send their work history in order to compare it with the information provided in the CV, with a view to future selection processes that would allow workers (with term or trial contracts) to move to permanent contracts, found that a worker – on a term contract – had indicated in her CV professional experience necessary for the performance of the position that she did not actually have. In view of this circumstance, the company proceeded to dismiss the worker, who filed a lawsuit for unfair dismissal and violation of fundamental rights.
The Social Chamber of the Superior Court of Justice of Valladolid considered that the decision adopted by the employer was taken on the basis of an unlawful processing of personal data, which implied using personal data – the employee’s working life – for a purpose other than that originally intended, Although the worker voluntarily shared her work life, the truth is that she did so for the purpose of being able to accredit her experience for future processes that would allow her to move from a work contract to a permanent contract, and not to be used in disciplinary or investigative procedures.
Thus, the court begins by emphasizing that: ”we are faced with a fundamental right to data protection, which guarantees the individual control over his data, any personal data, and over its use and destination, in order to avoid unlawful trafficking of the same or harmful to the dignity and rights of those affected”.
Regarding the purpose of the delivery of the employment history report, the court pointed out that: ”The company used the employment history report to proceed with her dismissal, once the discrepancy with the professional experience that she stated in her curriculum vitae was established, accusing her of a serious breach of contractual good faith”.
It goes on to comment, “It is on record that already on 02/14/2022 the company had requested all its workers to hand in their work life report before 02/28/2022 because it had detected a falsification, in the sense that the curriculum of a worker did not coincide with her work life, wanting the data of the work life to confront it with the curriculum of each worker, without the plaintiff worker handing in her work life on that occasion”.
“The request made to the plaintiff on 17/03/2022 through the HR department was in the following terms ”On the occasion of the possible selection processes that may take place within (—) to opt for a job with indefinite character, it is requested, in the case of wanting to participate in such processes, the delivery of the work life report in order to verify the data indicated in the curriculum vitae provided at the time of indicating the employment relationship,” the court emphasized.
The court concluded its reasoning by stating that ”We therefore agree with the appellant that this misuse by the company of the personal data provided by the employee for a different purpose, thereby justifying her disciplinary dismissal, constitutes unlawful processing and violates the fundamental right to data protection provided for in Article 18.4 of the Spanish Constitution”.
Now, in a very interesting legal reflection, despite considering that there is a violation of the constitutional right to protection of personal data, the court considers that the dismissal is only unlawful, but not a violation of fundamental rights, since it makes a valuable distinction between the violations that may occur in the act of dismissal, with those acts that are violating, but not in the dismissal itself, but for example in the process of collecting background information that may allow to prove the grounds invoked.
In this regard, the court states that: ”Dismissal in violation of fundamental rights cannot be confused with the infringement of fundamental rights to obtain proof of the facts on which the employer relied to adopt such sanction, which is what happened here, in which the company, in trying to check the behavior of its employee and obtain proof of her breaches to try to justify her dismissal, has unlawfully obtained or used such evidence in violation of fundamental rights, and whose consequence, ex art 11. 1 LOPJ and 90.2 LRJS, is that such evidence has no effect whatsoever”.
With this in mind, the court understands that, having suppressed the evidence obtained in violation of the right to protection of personal data, there is not sufficient background to prove the imputed conduct, which is why it partially accepts the appeal, declaring the dismissal as improper, but not as an infringement of fundamental rights.
For more information on these issues, please contact our Labor Group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Manuel Sepúlveda | Associate | msepulveda@az.cl
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