Did installing covert CCTV to monitor workplace theft violate an employee’s Article 8 privacy rights?
Article 8(1) of the European Convention on Human Rights (ECHR) states, “everyone has a right to respect for his private and family life, his home and his correspondence.” However, this is not an absolute right. Article 8(2) provides that a public authority shall not interfere with the exercise of the right to privacy “except such as is in accordance with the law and is necessary for a democratic society:
- In the interests of national security, public safety or the economic well-being of the country.
- For the prevention of disorder or crime.
- For the protection of health or morals.
- For the protection of the rights and freedoms of others.”
Balancing the conflicting demands of a community with the protection of an individual’s fundamental rights has given rise to a host number of cases involving monitoring in the workplace. In this case, Lopez Ribalda and others v Spain, the Grand Chamber of the European Court of Human Rights (ECtHR) decided that the employee’s Article 8 rights were not violated.
Ms López Ribalda together with four other applicants worked as cashiers at a supermarket chain MSA. In June 2009, the manager of the supermarket discovered significant stock discrepancies. In order to investigate this, they installed CCTV cameras in the supermarket. The cameras aimed at identifying possible thefts by customers were visible. However, other cameras, aimed at recording possible thefts by employees at the cash desks, were not visible. Signs were put up in the supermarket to indicate that CCTV was in use but employees were not specifically told about the cameras.
Shortly afterwards, Ms López Ribalda and her colleagues were caught on video stealing items or helping co-workers and customers to steal items. Five employees admitted involvement in the thefts and were dismissed. All five of the employees brought unfair dismissal claims, arguing that the surveillance had been unlawful. The claims were dismissed by the Spanish employment tribunals and again on appeal by the High Court of Catalonia.
The tribunal and High Court held that the covert video surveillance had been lawfully obtained even though prior notice had not been given to the employees. The High Court accepted that the surveillance had been justified by the employer’s reasonable suspicion of theft, had been appropriate to the legitimate aim of detecting theft, and was necessary and proportionate.
In their claims against Spain before the European Court of Human Rights the employees complained that the use of footage taken from the covert video surveillance in the unfair dismissal proceedings had breached their right to privacy under Article 8 of the ECHR and the use of the footage in their unfair dismissal proceedings had infringed their rights under Article 6 of the ECHR, the right to a fair trial.
The ECtHR decided that the Spanish courts had failed to strike a fair balance between the rights involved. It held that the covert video surveillance in this case was targeted not at particular individuals but at all the staff working on the supermarket’s cash register, over a period of weeks, without any time limit and during all working hours. The decision to install covert surveillance had been based on a general suspicion against all staff in view of the stock irregularities.
Spain applied for the case to be referred to the Grand Chamber of the ECtHR for a re-hearing.
The ECtHR, sitting as a Grand Chamber, held that there had been no infringement of the Article 8 right to privacy (overturning the chamber decision). In reaching its decision that the CCTV monitoring, in this case, was necessary and proportionate, the court took into account the following factors:
- The lower courts had found that the employer’s suspicion of theft meant that the employers had a legitimate interest in the CCTV surveillance.
- The monitoring took place in an open and public area where an employee would have a low expectations than they would in places such as a toilet or cloakroom where a total ban on CCTV may be justified.
- The employers stopped the recording once the culprits had been identified, the recording only lasted for 10 days and was not considered excessive.
- Only the manager of the supermarket, its lawyer and a union representative saw the CCTV recordings before action was taken, it was not used by the employer for any purpose other than to investigate the thefts.
- The domestic court also found there were no other means to fulfil the aims pursued and so this measure should be regarded as necessary.
It agreed with the chamber decision that there had been no infringement of the Article 6 right to a fair hearing.
The case follows what many employers will welcome as a common-sense approach to the use of covert monitoring as part of a targeted investigation, where the covert nature of the surveillance is an essential part of it. However, it is by no means a green light to blanket surveillance. In the UK, guidance published by the Information Commissioner’s Office states that it will be rare for covert monitoring of employees to be justified and that it should only be done in exceptional circumstances, for example, as part of a specific investigation into suspected criminal activity. It is therefore advisable for employers to maintain a strict policy that covert video surveillance will only be carried out in exceptional circumstances where the employer reasonably believes that there is no other less intrusive way of dealing with the issue. Where covert monitoring is undertaken, it should be done for the shortest possible period and affect as few individuals as possible.