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This is not a case of 'throwing a sickie'. An employee in a firm in the Basque Country was on temporary disability "due to an unspecified adaptive disorder" when, in September last year, his company informed him that it was imposing a 60-day suspension from employment and pay for, among other things, going golfing. He was punished in this manner after learning that a report had been made on him by a private detective agency. Their detective followed the employee to a private golf club and recorded him playing a round of golf there. He was also followed and recorded on film during stays outside the Basque Country at a second residential property belonging to him.
Dissatisfied with the decision, the employee appealed the sanction and the Social Court 2 of San Sebastián upheld his case and annulled the sanction, stating that the evidence provided by the private detective had infringed Article 48 of the Private Security Law. This establishes that "in no case may the private life of persons that takes place in their homes or other reserved places", such as the aforementioned golf club, be investigated.
In addition to the dismissal of the claim the company was ordered to pay the worker 15,000 euros in damages.
Now the High Court of Justice of the Basque Country has rejected the appeal filed by the company and has confirmed in its entirety the judgement set by the court that first heard the case. The Basque High Court ruling points out that the place where the photographs were taken while playing golf was a "reserved place", a private place with no public access, which leads to confirming the "unlawfulness of the evidence and discerning from that fact that an act of intrusion was carried out on the claimant's right to privacy in the ongoing process of his temporary incapacity."
It also specifies that a pathological issue such as the unspecified adaptive disorder (for example, depression, stress) suffered by the employee at the time, "does not contradict the undertaking of a sporting activity such as golf" and neither does the fact of moving to a second home have any effect.
This judgement is not final and an appeal may still be lodged with the Social Division of the Supreme Court for Spain.
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