Written by Brabners LLP
Article 8 of the European Convention on Human Rights protects an individual’s right to respect for private and family life. The law provides that a public authority cannot interfere with the exercise of this right, except in certain limited circumstances. When considering privacy cases, the Courts will normally seek to strike a balance between the rights of both parties. The case of Lopez Ribalda and others v Spain, involved a supermarket which suspected that some of their employees were stealing from the store after noticing a discrepancy between stock levels and what was being sold. In response, the supermarket manager installed several visible surveillance cameras with a view to detecting thefts by customers and several concealed cameras to record any thefts carried out by employees. Following the installation of the cameras, five employees were caught on camera stealing items and assisting colleagues and customers to steal items too. The five employees were later dismissed. The employees brought claims in the Spanish Courts, arguing that their Article 8 rights had been breached. The Spanish Courts upheld the employees’ dismissals and held that the covert surveillance was justified, appropriate and proportionate. The employees then took their cases to the ECHR and brought claims relating to breach of their right to privacy against Spain.
The ECHR upheld the claims by a majority, confirming that the Spanish Courts had failed to strike a fair balance between the employees’ rights to privacy and their employer’s right to protect its property as well as considering what is in the public interest. Of particular note is:
- The ECHR confirmed that covert video surveillance represented a considerable intrusion into the private life of an employee, especially as an employee is contractually obliged to be at work and therefore could not avoid being filmed. They confirmed that Spain had failed to adopt appropriate measures to ensure an individual’s right to privacy was not breached.
- The ECHR then considered whether a fair balance had been struck between the rights of the respective parties, confirming that it had not. The ECHR noted that, in another similar case, only particular employees had been targeted by the surveillance measure, the surveillance was limited to a certain time period and the cameras were restricted to filming in areas with public access. In this case, there was blanket surveillance due to a general suspicion of theft, the surveillance took place during all working hours and other issues were identified by the ECHR.
- The ECHR also made comments to the effect that the employer’s rights could have been protected adequately by other means, for example by informing the employees in advance of the installation of the surveillance system and providing them with certain information required by Spanish data protection law such as that personal data was being processed, and the reason for it.
While this case involved Spanish data protection law, it is a useful reminder of the importance of complying with our own data protection laws when using camera surveillance in the workplace. The Data Protection Act 1998 does not prevent employers from monitoring their employees, but a balance needs to be struck between protecting business interests and employees’ right to privacy. When considering the use of surveillance, employers should look at the nature of the problem and consider whether their proposed actions are proportionate in addressing the issue (bearing in mind the case guidance). Any monitoring of staff should be contained in an appropriate policy and staff should be made aware that they are being monitored and the reasons for it.
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