Covert surveillance of employees suspected of theft did not breach human right to private life

Summary

European Court of Human Rights holds that covert surveillance of employees under suspicion of theft did not breach the human right to private life- López Ribalda and others v Spain.

The Grand Chamber of the European Court of Human Rights (ECtHR) has overturned a previous chamber decision and held by a majority of 14 to 3 that there was no violation of the right to privacy under Article 8 of the European Convention of Human Rights (ECHR), following the use of hidden cameras to monitor theft in the workplace.

Facts

The employees all worked as cashiers at a Spanish supermarket chain. The manager of the store noticed some inconsistencies between the stock level and salary figures, in one month a difference of over €20,000. To investigate the losses, the manager installed visible and hidden CCTV cameras, and did not inform the staff. The five employees were caught stealing and dismissed. They later brought unfair dismissal claims in the Spanish courts and argued that the surveillance was unlawful.

The Claims were dismissed by the Spanish employment tribunals and the High Court and the employees appealed to the ECtHR, claiming that the use of the footage in the unfair dismissal proceedings breached their right to privacy and infringed their right to a fair trial.

Decision

In a clear departure from the previous decision in this case, the Grand Chamber held by a majority that there was no violation. In paragraph 116 the following principles were provided to be used when considering when an employer may implement video-surveillance measures in the workplace:

  1. Whether the employee has been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation of such measures.
  2. The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy.
  3. Whether the employer has provided legitimate reasons to justify monitoring and the extent thereof. The more intrusive the monitoring, the weightier the justification that will be required.
  4. Whether it would have been possible to set up a monitoring system based on less intrusive methods and measures.
  5. The consequences of the monitoring for the employee subjected to it.
  6. Whether the employee has been provided with appropriate safeguards, especially where the employer’s monitoring operations are of an intrusive nature.

The court determined that domestic courts had found that the installation of the video-surveillance had been justified by legitimate reasons and noted the legitimate interest of the employer, in taking measures to discover and punish those responsible for the losses.

The ECtHR held that as the cameras were in a public area open to the general public, employees should have a lower expectation of privacy at work, compared with places such as toilets or cloakrooms where a ban on surveillance could be justified. The video-surveillance further only lasted for 10 days and ceased once the responsible employees had been identified, the length of monitoring was not therefore excessive. Further, only a limited number of people viewed the recordings. Having regard to these factors, the court took the view that the intrusion into the applicant’s privacy did not attain a high degree of seriousness.

The ECtHR further held that whilst the consequences of the monitoring were serious, as it resulted in dismissal, the recordings were not used for any other purpose than to find those responsible and noted that the domestic court had found there was no other means to fulfil this aim. The measure should therefore be regarded as necessary, as the extent of the losses suggested multiple people were involved.

With regards to the Article 6 claim, the ECtHR concluded that it is not their role to decide the admissibility of evidence but to decide if the proceedings as a whole were fair and noted that the footage was not the only evidence supporting the domestic court’s decision.

Implications for employers

The case is a useful guideline to employers on when video surveillance is acceptable and demonstrates the importance of having a legitimate aim and this method being essential to its success. In the UK, guidance from the Information Commissioner’s Office noted that video surveillance of employees will rarely be justified. Employers should only use video surveillance in exceptional circumstances and as a last resort to tackle an issue, it is also important to do so for the shortest possible period and on a limited number of individuals.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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