In recent years, Spanish courts have increasingly ruled on disciplinary dismissals linked to sexual conduct in the workplace. These cases raise important legal issues for companies and managers, particularly regarding the use of CCTV cameras, data protection, and the proper classification of disciplinary misconduct.
The analysis is not straightforward, each case has its own nuances, and there is no single answer that applies to every situation.
Can sex at work justify dismissal?
As a starting point, Spanish case law has generally held that having sexual relations in the workplace and during working hours may constitute valid grounds for disciplinary dismissal. However, this general rule is subject to important exceptions that are worth knowing.
To illustrate this, it is particularly relevant to look at two recent judgments from the High Court of Justice of the Canary Islands.
Workplace CCTV and the use of recordings as evidence
Judgment of February 19, 2025 (HCJ Canary Islands)
In this first case, the company proceeded with the disciplinary dismissal of two employees after detecting through CCTV cameras, that they were having sexual relations on company premises and during working hours.
Among other facts, the company stated that they:
- “turned off the office light and locked the door.”
- “went to the Company’s parking booth, a booth that was no longer in use.”
- “once inside the booth, they tried to close the curtain on one of the windows to avoid being seen from outside, but when doing so the window broke.”
- “the female colleague began to take off her clothes and, immediately afterward, the male employee moved the security camera with his hand.”
- “approximately ten minutes later, both left the booth.”
The legal debate did not focus on the facts which were not disputed, but on the lawfulness of using the CCTV recordings to justify the dismissal.
When can a company use cameras without explicit notice?
Although the company had informed employees of the existence of cameras and of data processing, it had not expressly communicated that the cameras would be used for workplace monitoring.
The High Court established that, in such cases, recordings can only be used to prove workplace misconduct related to security, stating that:
“In this case, the recordings from the video surveillance system could be used as evidence, but not for any type of monitoring of work activity. Rather, they may be used to detect possible workplace wrongdoing, and possibly only wrongdoing related to the general purpose known for image-recording systems; that is, in cases where the infringement committed by the worker, and captured by the video surveillance systems, involves an attack on persons or assets for whose protection the cameras were installed: physical or moral assaults on persons, damage to property, theft of company assets, etc.”
And it added:
“The circumstances of this case are substantially different. What was committed by the worker is not an act for which the security cameras were installed, insofar as absent written communication to the worker, they were not intended to monitor the worker’s work activity, but rather to protect the company’s assets. Thus, capturing through security images the sexual activity of its workers and their neglect of work duties is not a ‘security’ matter for which the cameras were installed, but rather a matter related to work activity, for which the cameras were not intended, due to the lack of personal notice provided to each worker.”
In other words, without explicit notice, cameras cannot be used to sanction any breach of work obligations, only conduct that puts the safety of people or property at risk.
Ultimately, merely capturing disciplinary misconduct through video surveillance does not entitle the company to use those images in disciplinary proceedings. On the contrary, in order to rely on such recordings, the company must comply with the required prior information and proportionality standards; otherwise, any sanctions may be declared unlawful. As a final note, this approach may have exceptions in cases of so-called “hidden cameras” or “temporary cameras.”
Correct classification of the disciplinary offence
Judgment of June 18, 2025 (HCJ Canary Islands)
An employee, during working hours, noticed that the door to a small storage room was closed but not locked, and decided to enter.
Once inside, he found a co-worker (who was outside working hours) completely naked, with his trousers on the floor. He also observed a naked woman next to his co-worker; she was not an employee of the company.
The company dismissed the employee for committing a very serious offence: “breach of contractual good faith and abuse of trust in the performance of work.”
The employee challenged the dismissal. He did not deny the facts; instead, he argued that the company had incorrectly classified the conduct as “very serious” by relying on a generic disciplinary ground (“breach of contractual good faith”). In his view, the conduct should have been classified as “serious,” because the applicable collective bargaining agreement expressly defines as a serious offence “introducing or facilitating access to the workplace by unauthorized persons”, a description that better matched his actions.
In this case, the High Court held that:
“Indeed, as we previously pointed out, under the principle of specialty that governs the classification of labor infringements, when the same conduct is regulated 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 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 unauthorized persons and being at the workplace without authorization outside working hours, classified in the first case as a serious offence and in the second as a minor offence.”
The Court ultimately sided with the employee and declared the dismissal unfair, based on the company’s error in classifying the offence in the dismissal letter.
Key takeaways for companies and HR
In general terms:
- Sex at work may justify disciplinary dismissal.
- But the company must:
- Use evidence obtained lawfully
- Respect the limits on the use of CCTV
- Correctly classify the offence, applying the principle of specialty
A mistake in any of these areas can turn an apparently lawful dismissal into an unfair one, with the resulting economic and reputational impact.
We advise companies and HR managers on how to handle inappropriate conduct in the workplace, helping them assess whether specific behavior may justify disciplinary dismissal, and under what conditions action should be taken to avoid legal risks.
We design internal protocols, review video surveillance practices, analyze the correct classification of offences under the Workers’ Statute and the applicable collective bargaining agreement, and support companies in sensitive decision-making with legal certainty and a preventive approach.
Contact our team to receive specialized advice and ensure that these situations are handled in a proportionate and lawful manner, aligned with the company’s interests.
