Poisoned dismissals: The effect of illegal evidence

We frequently hear about companies taking disciplinary action against employees based on evidence that could only have been obtained by infringing workers’ fundamental rights. Recordings from video surveillance cameras or accessing employees’ email and digital devices used at work compromise individual rights, e.g., the right to one’s own image, privacy or personal data protection, but they often are the only ways of proving the employee’s misconduct.

Such was the case of an employee who would send clients to competing service providers but whose disciplinary dismissal was invalid because the employer submitted as evidence phone calls to the employee’s private phone while he was on temporary disability leave. The calls were made by a detective pretending to be a client. The company gave the employee’s number to the detective and the court found that the detective’s calls to his private phone were an unlawful interference with the employee’s privacy (Judgment of the Basque Country High Court of October 6, 2020, appeal 1002/2020).

In a different case, a worker left his phone charging in a common area of the company’s premises with the recording app on capturing all the conversations for hours. The Andalusia High Court (Judgment of September 5, 2019, appeal 3101/2018) rejected the employee’s temporary suspension without pay because, to find this out, the office manager had accessed the employee’s cell phone, thus infringing his fundamental right to privacy.

In all of these cases, there was proof of employee misconduct, but the employees claimed that the evidence was illegal, and the courts invalidated it, thus making employers unable to prove the employees’ misconduct.

Over the years, Spanish courts have had a consistent line of case law regarding evidence that is illegally obtained by infringing fundamental rights and freedoms.

This approach began in 1920 in the United States with the “fruit of the poisonous tree doctrine.” But the Spanish Constitutional Court did not establish this doctrine until 1984 in Judgment 114/1984, ruling on the procedural implications of illegally obtained evidence. According to the “poisonous tree” doctrine, illegally obtained evidence taints all evidence subsequently obtained.

However, although it may seem simple, courts sometimes hesitate when deciding on the effects of this doctrine on employment proceedings.

There is general agreement that any illegally obtained evidence, i.e., infringing workers’ fundamental rights and freedoms, is invalid and thus inadmissible in court. However, there is a long-lasting, ongoing debate about the effects of illegally obtained evidence on the nature of dismissals in dismissal proceedings.

Spanish courts, far from unifying case law on the need that there be ties between the evidence and the nature of the dismissal, they take a case-by-case approach when interpreting the applicable provisions. As a result, their rulings are very diverse.

There are two basic stances: the interconnection approach and the separation approach:

• According to the majority stance, if the evidence obtained by infringing workers’ fundamental rights is illegal, the dismissal must qualify as invalid, since both the evidence and the dismissal are interconnected. Along these lines, judgments from the High Courts of Catalonia (Judgments 188/2018, of March 22, and 1727/2017, of March 9), Asturias (Judgment 83/2016, of January 22), or the Basque Country (Judgment 609/2013, of April 9) provide that “the dismissal being invalidated is the necessary and appropriate effect for the employer’s actions, since its actions infringed fundamental rights.”

• The separation approach is contrary to the majority stance. According to this approach, only the illegally obtained evidence should qualify as invalid, but not the dismissal, which, even if it was only based on the illegal evidence (thus inadmissible in court), should be considered unfair and not invalid.
  
  The High Courts of Navarre (Judgment 272/2019, of September 12), Madrid (Judgments 597/2018, of September 13, and 1033/2015, of June 28) or Castilla-La Mancha (Judgment 25/2018, of January 12) support the separation approach. According to these courts, “(i) the dismissal infringing fundamental rights as a result of illegally obtained evidence; and (ii) the fundamental rights infringement resulting from the collection of evidence to prove the facts supporting the dismissal should be treated separately,” thus detaching the illegal nature of the evidence and the consideration of the dismissal as invalid.
  
  In sum, the separation approach claims that the illegally obtained evidence does not justify, by itself, that the dismissal qualify as invalid. Employees should not be shielded from the consequences of their own actions.

Therefore, there is no consistent line of case law regarding the consideration of these “poisoned dismissals.” Spanish courts are involved in a complex procedural debate and approach the final consideration of the dismissal case by case.

This casuistry requires careful examination of each case to avoid the risk that potentially illegal evidence may render a dismissal invalid or unfair (the latter being undesirable but not as bad) in cases where there is proof of the employee’s serious misconduct.