Investigações empresariais

Disciplinary offenses and private investigation services

All private investigation services should be exercised with respect for the principles of reasonableness, necessity, appropriateness and proportionality.

In Spain, private investigation services are regulated by law and consist in carrying out the steps necessary to obtain information and evidence about behaviors or private facts in particular in the economic, technical, commercial, financial and generally within the personal, family or social life.

The facts of the intimate life that occur at home or other reserved places can’t be investigated, and by no means the rights to honor, personal or family privacy, image or communications secrecy and protection data can be undermined.

In 2014, the Spanish Supreme Court considered that a report made by a private detective hired by the employer has testimonial evidence, and it must be confirmed and properly appreciated in court of law.

In this particular case the employer intended to check whether the union representative, elected by the company’s workers, was using his hours credit for personal use and not for workers union activity.

In Portugal, and according to the Portuguese Constitution are void all evidence obtained through torture, coercion, physical or moral offense.

Would it be permissible to the Portuguese legislation, recourse to private detectives to investigate facts that may constitute disciplinary offenses and thus support a decision to fire an employee, for instance?

All evidence is considered offensive to physical or moral integrity of the subject if obtained, even with their consent, by:

  1. Disruption of freedom of will or decision-making trough injury, obligation to take any kind of substance, hypnosis or use of cruel or deceitful means;
  2. Perturbation, by any means, of memory or processing capacity of the subject;
  3. Use of force outside the cases and the limits allowed by law;
  4. Threat with legally inadmissible measure, as well as denial or conditioning of obtaining legally provided benefit;
  5. Promise of legally inadmissible advantage.

Concerning evidence obtained through the interference with privacy, home, mail correspondence or telecommunications, the circumstances of each particular must be determined to understand whether the the proof was obtained in an abusive manner or without the consent of the respective holder.

In a recent judgment, the Oporto Court of Appeal considered that “obtaining photographs or filming, without the consent of the person concerned, where there is just cause in this procedure, particularly where [those] are framed in public places, aimed at achieving public interests or shall have been publicly “, although they have not been licensed by the National Data Protection Commission do not constitute illegal evidence and, as such, can be used in court.

This text was adapted from the original OJE article,

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