The TS endorses the null dismissal of an employee registered for theft without the presence of another worker or union

It indicates that the company cannot register a worker if a legal representative or another employee is not present.

June 13. () –

The Supreme Court (TS) has confirmed the annulment of the dismissal of an employee whose bag was inspected, in which she was carrying four items that she had not paid for, because the search was carried out without the presence of any legal representative of the workers or from another worker.

This is reflected by the Social Chamber in a ruling, collected by Europa Press, in which it states that a security guard ordered the employee of a shopping center to open her bag when the anti-theft alarm sounded at the staff exit door. , discovering that he was taking out several products, valued at 8 euros, without paying.

The woman, an employee of El Corte Inglés, was fired for this and a court in Huelva ruled in favor of the company. However, the affected person appealed to the Superior Court of Justice of Andalusia, which declared her dismissal null and void and ordered that she be reinstated immediately and paid the salaries that she had stopped receiving.

Later, the company, condemned to reinstate it, appealed to the Supreme Court, which now focuses on the fact that the Workers’ Statute allows registrations, but under certain conditions.

Thus, the law establishes that records can be made when necessary; within the work center and during work hours; respecting the dignity and privacy of the worker; and with the presence of a legal representative or another employee “whenever possible.”

For this reason, the TS emphasizes the “requirement” that a representative of the workers or another worker be present at the registry, which “is not related to the protection of the privacy” of the employee, but rather is a guarantee of the objectivity and effectiveness of the test, which is not valid if that condition is not met.

According to the Supreme Court, in the case of this worker, the evidential ineffectiveness of the bag search carried out in violation of the norm leads to the disciplinary dismissal being unfair.

However, as the worker had a reduced working day to care for a minor child, the “automatic nullity” operates, with the obligation to reinstate and pay the processing salaries.