Covert surveillance in the workplace
22 February 2018
The European Court of Human Rights (ECtHR) has considered whether the installation of hidden cameras, to monitor suspected workplace theft, was in breach of employees’ rights to privacy under the European Convention on Human Rights.
López Ribalda and others v Spain, ECtHR
The claimants were a group of supermarket cashiers. In 2009, following stock discrepancies, the supermarket (MSA) installed surveillance cameras. Some of the cameras were visible, with the aim of catching thefts by customers. Other cameras were aimed at recording possible employee thefts and were concealed.
Shortly after the cameras were installed, a group of employees were caught on video stealing items themselves and helping co-workers and customers to steal items. The employees admitted their involvement and were dismissed. Their claims for unfair dismissal were rejected by the Spanish employment tribunal and the High Court. The Court found that the covert surveillance had been justified due to the reasonable suspicion of theft.
The employees pursued a claim to the ECtHR, complaining that their employer had breached their rights under Article 8 (the right to privacy), as well as under Article 6 (right to a fair hearing).
The Court rejected the employees’ Article 6 claim, but upheld the Article 8 claim. The Spanish courts had failed to strike a fair balance between the employees’ right to respect for their private life, and the employer’s interest in protecting its property.
Whilst the covert surveillance was carried out in the context of an arguable suspicion of theft, it contravened certain provisions of Spanish data protection law and guidance. MSA did not inform its staff that cameras had been installed and did not inform them of their rights under data protection legislation. In addition, the cameras had not been targeted at particular individuals and the surveillance was carried out over a period of several weeks, without any time limit during working hours.
This case concerns Spanish workers and takes into account Spanish data protection requirements, but it is still a useful indicator of the factors taken into account in balancing the respective interests of the parties.
Guidance published by the Information Commissioner’s Office states that covert monitoring of employees will only rarely be justified, in circumstances where overt monitoring is likely to prejudice the prevention or detection of crime. Employers who consider implementing any form of covert monitoring must be satisfied that there are no less intrusive methods of investigating the matter. Where covert monitoring is carried out, it should be done for the shortest possible period and affect as few individuals as possible.
This article is from the February 2018 issue of Employment Law, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at February 2018.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2018.