Employment and Immigration Law Update - Covert monitoring


26 November 2019

The European Court of Human Rights (ECtHR) has considered whether an employer’s covert surveillance of its employees resulted in a breach of their Article 8 right to privacy under the European Convention of Human Rights.

López Ribalda and others v Spain (applications 1874/13 and 8567/13)

Facts

This case concerned a group of Spanish supermarket cashiers who had been dismissed as a result of covert CCTV footage of them stealing from their employer. The employees’ unfair dismissal claims were dismissed by the Spanish courts. They pursued a claim against Spain to the ECtHR, which held that their rights to privacy under Article 8 had been infringed (see our previous summary of the decision). Spain applied for the case to be reheard by the Grand Chamber of the ECtHR.

ECtHR decision

The Grand Chamber has overturned the previous decision of the ECtHR, finding that there was no infringement of the employees’ Article 8 right to privacy.

The Court was satisfied that the measures taken by the employer in this case were both necessary and proportionate. It agreed with the domestic courts that the employer had legitimate reasons for using the video surveillance, namely the suspicion of theft that had resulted in significant losses to the business over several months. The monitoring took place in a public area where expectations of privacy were lower than places such as a cloakroom or toilet. In addition, it had only lasted for a period of ten days until the culprits were identified. The recordings were not used for any other purpose and had only been viewed by the supermarket manager, the company’s legal representative and the union representative prior to commencing disciplinary proceedings.

In most cases, individuals should be clearly informed in advance of the video surveillance, but the court was satisfied in this case that the employer’s reasonable suspicion of serious misconduct, combined with the extent of the losses, constituted weighty justification.

Consequences

Whilst this decision is good news for employers who suspect employees of serious misconduct, it should still be treated with some caution. It does not permit covert monitoring of employees other than in the limited circumstances when it might be justifiable, taking into account the type of factors referred to above. Employers should address their mind to the question of whether covert monitoring is justifiable in advance of taking such measures. The Information Commissioner’s Employment Practices Code (paragraph 3.4) expressly states that it will be rare for covert monitoring of employees to be justified.

This article is from the November 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.