Fri 01 Nov 2019

Employers can covertly film employees……sometimes

The Grand Chamber of the European Court of Human Rights has overturned last year's decision on covert filming of employees.

One of the trickiest issues for the European Court of Human Rights to grapple with over recent years has been how far the right to private life (under Article 8 of the European Convention on Human Rights) extends to the workplace. In recent years, this included the case of Barbulescu v Romania which held Article 8 had been violated where an employer failed to warn an employee of his emails being subject to monitoring.

In the case of Lopez Ribalda v Spain, the Grand Chamber of the ECtHR had to tackle the question of whether to take the same approach, in a case which concerned the use of covert CCTV surveillance of staff in a supermarket following concerns about the amount of stock that was going missing.  The losses from the supermarket were not insignificant - goods to a value of over 82,000 Euro had been taken over a five month period, before the employer resorted to covert video surveillance.

Importantly in this case, the employer had limited the duration of the surveillance (to 10 days) as well as the area subject to the surveillance (i.e. the cash desks in a relatively public area). Once footage was obtained, it was viewed only by a limited number of individuals and used only for establishing that theft had indeed taken place. As a result, the employer dismissed a number of employees.

Some of the employees involved raised unsuccessful claims in the Spanish domestic courts before heading to the ECtHR where they argued that the use of the covert surveillance footage breached their right of privacy under Article 8. Part of their argument included the fact that the employer's use of covert surveillance had breached domestic Spanish data protection law which required individuals to be informed about CCTV use. At first instance, a Chamber of the ECtHR upheld the claim. It held that the workplace surveillance had been a considerable intrusion into the employees' private life and that the supermarket had failed to strike a fair balance between the right of privacy and its business interests in protecting its property.

However, the Grand Chamber has overturned that decision. The employer had a legitimate reason to implement the surveillance, given the suspicion of theft in relation to significant losses. The monitoring took place in an area open to the public, where employees' "reasonable expectations of privacy" was lower. The surveillance continued only until the culprits were identified and was then used for the limited purpose of the disciplinary action. Moreover, the domestic court had found there was no other means to fulfil the aim pursued - providing information to staff might well have defeated the purpose. 

Despite coming to this decision the Court was clear that generally speaking the slightest suspicion of wrongdoing would not usually justify covert video surveillance. This case had a number of unusual aspects to it including the number of employees involved, the high value of the goods that had been stolen and the limitation to the monitoring carried out. These were all factors which were taken into account in assessing whether the employer had struck the appropriate balance between the employees' rights and their own. 

An employer would normally be expected to make employees aware of the extent of any monitoring that might be going on in advance of it taking place. Employers should consider if their existing Privacy Notices are sufficiently clear as to any CCTV surveillance which may take place within the workplace.

Covert monitoring of any type is not something that an employer should undertake lightly. The Information Commissioner's guidance is clear that covert surveillance should only be carried out in exceptional circumstances and an employer will always have an uphill struggle to show it was necessary and proportionate.

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