The company alleges that the investigation and monitoring of the plaintiff by detectives was commissioned due to well-founded suspicions of improper use of union credit.

The appeal for the unification of doctrine filed by the defendant company against ruling No. 125/2024, issued on January 16 by the Social Chamber of the TSJ of the Basque Country (rec. supplication 2195/2023), is resolved. This ruling confirmed that of JS No. 3 of Vitoria-Gasteiz dated September 15 (orders 240/2023), which resolved the lawsuit for dismissal filed by the worker.

The subject of the litigation revolves around the origin of the disciplinary dismissal of a personnel representative for the improper use of union hours, proven by evidence obtained by private detectives.

The worker worked as a boilermaker in the company and, since November 2022, was also a personnel representative of a union. As a union representative, he had the right to use paid hours to carry out union activities. However, the company began to suspect that the worker was using those hours for personal matters, and hired a detective agency to follow him during several of those absences. With the report they obtained, they dismissed him disciplinaryly in February 2023, alleging improper use of union credit.

The worker sued the company for dismissal, alleging that their fundamental rights had been violated.The Social Court ruled in favor y declared the dismissal void, ordering his reinstatement and the payment of unpaid wages. The company unsuccessfully resorted to Superior Court of Justice of the Basque Country, which confirmed the sentence. Finally,The company went to the Supreme Court, presenting an appeal to unify the doctrine, mainly discussing whether the detective surveillance was legal and whether it violated the worker's freedom of association.

The doctrine discussed in this ruling establishes that surveillance by private detectives can be valid evidence to prove improper use of hourly credit by worker representatives, as long as said surveillance respects the fundamental rights of the worker, especially the right to privacy, dignity and freedom of association. Furthermore, the measure must be proportional, necessary, suitable and cannot involve singular surveillance that limits the free exercise of union office. Detective evidence is admissible, even if it is based on suspicions or indications that are not fully founded, as long as there is no violation of fundamental rights or invasion of private life in reserved places. Once the legality of the evidence has been declared, it is up to the trial court to assess its scope to qualify the dismissal.

The Supreme Court upholds the appeal for unification of doctrine filed by the company and declares evidence obtained through private detectives is legal to verify possible misuse of union time credit by a personnel representative.

The High Court concludes that The monitoring did not violate fundamental rights and was in accordance with the principles of necessity, appropriateness and proportionality. Consequently, it annuls the ruling of the Superior Court of Justice of the Basque Country, annuls the ruling of the Social Court that had declared the dismissal null and void, and returns the proceedings to the court of origin to issue a new sentence, evaluating the evidence as valid and resolving whether the dismissal is appropriate or unfair.