Is it legal to put a detective on a worker during sick leave?
If you suspect that one of your employees is fraudulently on sick leave, it may be in your interest to hire a detective to check whether he or she is really ill. But the investigation must respect your fundamental rights.
You can hire a private detective
Investigation during TI
Suspected fraud
It is becoming more and more common for companies to hire the services of private detectives when they suspect that one of their employees has fraudulently or deceitfully applied for sick leave due to temporary incapacity.
This type of investigation can provide evidence or corroborate the alleged fraud on the part of the worker. In this way, the company can use this means of proof to justify disciplinary dismissal for breach of contractual good faith.
Is it valid and legal to use a detective?
In general, it is valid and legal for the company to hire the services of a private detective in order to obtain evidence of possible fraud or deception by the employee, provided that the following principles are respected:
- That there is a real and legitimate interest on the part of the company.
- That qualified professionals are hired to carry out the investigative functions.
- That the information obtained has been obtained through legal means.
- That the principles of reasonableness, necessity, suitability and proportionality are respected.
The private detective himself may not investigate the intimate life of workers in their homes, nor may he provoke or induce the person under investigation to carry out the illegitimate conduct that leads to the breach for which he will later be sanctioned or dismissed.
Example of IT fraud
Disciplinary dismissal
The courts [TSJ Castilla-La Mancha 11-01-2024] ruled that the disciplinary dismissal for breach of contractual good faith of a worker who had used a situation of temporary incapacity to carry out work tasks in another company that were incompatible with her alleged illness (the worker opened a nail care and training centre and gave a beauty session to the private detective who was investigating her) was valid.
The sick leave was issued for muscular pain, so either the worker had faked it or she was carrying out activities that were incompatible with her temporary incapacity.
Evidence from the detective during the TD
The evidence obtained by the private detective was as follows:
- The existence on the Instagram application of an account – linked to the name and telephone number of the worker – in which the opening of the nail centre was advertised.
- The private detective’s conversation with the worker herself in the same establishment, providing her with information about his services.
- The performance of a beauty session for the detective himself, with the corresponding price linked to the service.
- The fact that during the days of the monitoring, no worker was found in the centre other than the person under investigation.
The private detective never induced the worker to carry out the conduct that would lead to her disciplinary dismissal, as she was always advertising the service she was performing on her own account; therefore, she carried out the beauty session with the private detective as she could have done with any other client who was interested in the beauty services she was advertising.
Another case of fraud by a worker during IT
The IT worker has another job
In another case [TSJ Cataluña 21-02-2024] , an occupational risk prevention manager of a chain of opticians’ shops, while she was on leave from the company due to temporary incapacity, carried out paid online and face-to-face coaching sessions on her own.
The reason for the sick leave was confidential, but the company knew that the employee had alleged ailments that prevented her from spending more than 15 minutes in front of the computer.
However, the practice of these coaching sessions was incompatible with her temporary incapacity, as it could interfere with her recovery process and was a demonstration of her ability to continue working as the company’s occupational risk prevention manager.
Detective investigation
The company became aware of these facts by hiring a private detective to investigate the worker, and the court validated the way in which evidence of fraudulent conduct had been obtained.
The employee at all times advertised the paid coaching sessions she was conducting on her own, so the report by the private detective hired by the company did not violate any fundamental rights.
Workers' right to privacy
Infringement of the employee’s right
Not valid
Although the practices carried out by private investigators are generally legitimate, there have been cases in which the collection of this type of evidence has been considered invalid.
When the evidence provided has been obtained through the violation of a fundamental right related to the employee’s own privacy, or when it has been obtained through repeated insistence by the detective in the face of the employee’s constant refusal, it has been classified as illegal.
Example 1
It would not be lawful to dismiss an employee when it was discovered, by means of a detective’s photos, that he was gardening in the garden of his home while he was on sick leave due to lumbago.
The photos taken by the detective in the employee’s home are unlawful, as this is a private sphere in which the employee’s intimate, personal and family life is being exercised.
If the detective had photographed the employee in public places, the evidence would be valid.
Example 2
Nor would it be legal if, in order to justify the consequent disciplinary dismissal of a worker who is on sick leave due to temporary disability, a private detective were to provoke him to carry out a certain activity against his will. In such a case, the information would not be obtained by legal means.
Non-compliance: consequences
It will not serve as evidence
In the event that the evidence has been obtained without respecting the principles indicated (legitimate interest; reasonableness, necessity, suitability and proportionality…), it will not be taken into account to accredit the employee’s non-compliance.
Nor will it be taken into account if it has been obtained in violation of fundamental rights (for example, if it has been obtained in violation of the right to privacy or the secrecy of communications).
Qualification of the dismissal
However, the nullity of the evidence does not always lead to the nullity of the dismissal. The dismissal may be qualified as:
- Proceeding . If the imputed non-compliance is accredited on the basis of other independent evidence that does not derive from the detective’s invalid evidence and is not contaminated.
- Inappropriate . When the breaches accredited by other means do not reach the gravity and guilt necessary to justify the disciplinary measure.
- Void . When there is no other evidence and the evidence provided violates the fundamental rights of the employee.
Sanctions
The employer’s actions that violate the right to privacy and dignity of workers are considered a very serious offence, punishable by the Labour Inspectorate with a fine of between 7,501 and 225,018 euros.
In addition, the worker may request compensation for moral damages and there could also be a sanction for non-compliance with data protection regulations.
Private detective tests can be used to detect fraudulent sick leave, as long as they do not violate the privacy and fundamental rights of the worker.
