Spain: Sex at Work, CCTV Cameras, and Fair or Unfair Dismissal?

No author has ventured to point to any specific reason, but the truth is that in Spain, it has recently become common to see court rulings on dismissals and/or disciplinary sanctions arising from some type of sexual act carried out by employees.

Furthermore, each of the cases reviewed by the courts has presented specific singularities that prevent obtaining cohesive and homogeneous judicial responses on this matter.

For this reason, we will review two recent judgements that have dealt with this type of situation, namely the Judgement of 19 February 2025 of the Canary Islands, Santa Cruz de Tenerife (Appeal no. 605/2024), and the Judgement of 18 June 2025 of the Canary Islands, Santa Cruz de Tenerife (Appeal no. 1013/2024).

Judgement of 19 February 2025

This judgement contains the following facts:

• The Company disciplinarily dismissed certain employees for engaging in sexual relations on Company premises and during working hours. Specifically, the Company states that:
• • “They turned off the office light and proceeded to lock it.”
  • “They went to the Company’s parking booth, a booth that was no longer in use.”
  • “Once inside the booth, they attempted to close the curtain on one of the windows to avoid being seen from outside, but in doing so the window broke.”
  • “The female colleague began to remove her clothes and, immediately thereafter, the employee moved the security camera with his hand.”
  • “Approximately ten minutes later, both left the booth.”

In short, through the CCTV system, the Company detected that two employees were engaging in sexual relations within Company premises and during working hours, and consequently dismissed them.

One of the employees challenged the dismissal, and the legal debate focused on whether the Company could lawfully use the images captured by the CCTV system or whether, on the contrary, their use was unlawful.

Regarding the cameras, it should be noted that the Company had CCTV cameras installed on the premises, duly signposted with data-processing notices, although it had not expressly informed employees of the possibility of using CCTV for the purpose of carrying out dismissals.

Accordingly, the High Court of Justice summarised the situations in which the Company may use images captured by CCTV where, despite informing about data processing and the existence of the cameras, it has not expressly informed employees of their use for labour control purposes:

“In this scenario, recordings from the CCTV system could be used as evidence, but not for any type of monitoring of work activity; rather, only to monitor possible labour offences, and possibly, within these, only those related to the general purpose known to exist for image-recording systems, that is, in cases where the infringement committed by the employee, and captured by CCTV systems, constitutes an attack on persons or property for whose protection the cameras were installed: physical or moral assaults on persons, damage to property, theft of company assets, etc.”

“The circumstances of the case are substantially different. What the employee committed is not an act for which security cameras are installed, insofar as they were not intended, in the absence of written notice to the employee, to monitor work activity, but rather to protect company assets. Therefore, the capture by security images of the sexual activity of employees and their neglect of work duties is not a ‘security’ act for which the cameras were installed, but rather an act related to work activity, for which the cameras were not intended, in the absence of personal information provided to each employee.”

In other words, the High Court of Justice of the Canary Islands, applying the doctrine of the Constitutional Court—among others, Constitutional Court Judgement no. 199/2022 of 29 September 2022—held that, in the absence of express notice of the use of CCTV systems for monitoring the employment relationship, the Company may only use images where the employees’ conduct constitutes a “labour offence,” understood as an act that endangers the Company’s security (physical integrity of colleagues or clients, company assets, etc.), and excluding other employee breaches that do not pose a risk to Company security.

On the other hand, and before commenting on the second judgement, it should be noted that this doctrine does not apply in cases of “temporary cameras,” that is, situations in which the Company, following well-founded suspicions and without any equally effective alternative, installs temporary cameras without giving any notice whatsoever (not even notice of data processing).

Judgement of 18 June 2025

This judgement contains the following relevant facts:

• An employee who was on duty noticed that the door of a small storage room was closed but not locked, and decided to enter the facility.
• Once inside, he noticed that a colleague, who was outside his working hours, was there completely naked with his trousers on the floor, and he also observed that next to the naked colleague there was a naked woman who was not an employee of the Company.
• The Company dismissed the employee in question for committing a very serious offence consisting of “breach of contractual good faith and abuse of trust in the performance of work.”

Based on the above, the employee challenged the dismissal. In doing so, the employee did not deny the facts, but rather placed the debate in a different context, specifically arguing that the Company had incorrectly classified the conduct as “very serious” by relying on a generic disciplinary cause established by law (“breach of contractual good faith”), when in reality, according to the employee, the conduct should be classified as “serious” and not “very serious,” since the applicable collective bargaining agreement expressly classifies as a serious offence “introducing or facilitating access to the workplace by unauthorised persons,” a description that more closely matches the conduct carried out by the employee.

In this specific case, the High Court of Justice held that:

“Indeed, we have previously pointed out that, in application of the principle of speciality governing the classification of labour infringements, when the same conduct is covered by two different rules, the special rule prevails over the general one. Therefore, the judge cannot rely on the general causes of fraud, disloyalty or abuse of trust at work provided for in Article 58, paragraph 3, of the State Collective Agreement for Sanitation when Articles 57, paragraph 23, and 56, paragraph 15, of the same agreement specifically classify the actions of introducing or facilitating access to the workplace by unauthorised persons and being present at the workplace without authorisation outside working hours, as a serious offence in the first case and a minor offence in the second.”

In other words, the High Court of Justice declared the dismissal unfair because the offence committed by the employee had not been correctly classified.

It is, therefore, essential to be aware of the principle of speciality that governs labour disciplinary matters. This means that the Company may only rely on generic classifications when the employee’s conduct cannot be subsumed under any specific category, and the Company has no authority to contradict what is established in the law and/or the applicable collective bargaining agreement.

In conclusion, the fact that employees engage in sexual relations at work is, as a general rule, a valid ground for disciplinary dismissal; however, this general rule has exceptions, such as the principle of speciality in classification and the need to have legally valid evidence, among others.