Written by Brabners LLP
Are employers allowed to record their employees at work without them knowing? Does this breach human rights laws? Potentially not if the purpose is to catch a criminal, according to the Grand Chamber of the European Court of Human Rights (“ECtHR”).
For as long as we remain a member of the European Union, UK judges must take the decisions of the ECtHR in account, although they are not binding. In any case, the principles of this case are useful for employers considering installing CCTV monitoring. Read on to find out more!
Facts
In the recent case of Lopez, Ribalda and others v Spain (2019), the Grand Chamber of the ECtHR considered whether the use of covert surveillance to deal with persistent theft in the workplace constituted a violation of an individual’s right to privacy under Article 8 of the European Convention on Human Rights.
Ms Ribala was a cashier at MSA, a Supermarket Chain in Spain which had been losing up to 20,000 euros worth of stock a month. In response to these discrepancies, the supermarket installed CCTV in the supermarket intending to catch would-be criminal customers shopping at the store. Those CCTV cameras were visible. In addition, there were further covert surveillance cameras installed at checkouts to monitor employees. During a staff meeting, employees were notified of the general, visible cameras and why they were being installed. However, whilst there were signs provided in store to notify people that CCTV was in use, there was no specific notification of the covert checkout cameras.
Soon after, Lopez and four other individuals were caught scanning items and then canceling them, before placing the canceled item into the customer’s basket (effectively giving the item to the customer for free). These employees were subsequently dismissed, with three signing settlement agreements confirming that they would not contest their dismissal. In return, MSA agreed not to bring criminal charges against them.
Despite agreeing not to, all five dismissed employees brought unfair dismissal claims against MSA, claiming the surveillance footage was unlawful, specifically that the covert surveillance had breached Article 8 of the European Convention on Human Rights: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.
The Spanish courts decided that MSA’s use of covert surveillance was justified. The decision was subsequently referred to the Grand Chamber of ECtHR.
Decision
The Grand Chamber deemed there to be a fair balance of public and individual’s interests and decided that MSA had not acted in breach of the employees’ right to privacy under the European Convention on Human Rights. The Grand Chamber considered a number of factors including: whether and how employees had been informed; the length of time the monitoring was in place; whether there were legitimate reasons for the intrusion on privacy; whether less intrusive methods could be used and the consequences to the employees.
It was ruled that due to the significant sums of money stolen, the actions taken by MSA had been proportionate. Relevant factors included the limited time the covert cameras had been in place (10 days), and that only a trade union representative and store manager had seen the incriminating footage prior to the employees’ dismissals.
What can be learnt from this decision?
To some, the decision in Lopez may seem to be a victory for common sense in circumstances where employees were “caught red handed”, however the case took 10 years in the courts to resolve, evidence of how tricky the area of law is surrounding covert surveillance in the workplace.
Before employers begin thinking that covert surveillance of their employees could be the answer to their woes, they should be mindful that this case does not give employers free reign to lawfully install covert monitoring. Furthermore, in addition to potential breaches of employees’ human rights, employers also need to be aware of the requirements of the GDPR and the Data Protection Act 2018.
In the UK, guidance published by the Information Commissioner’s Office (the regulatory body for data protection) 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 where it would prejudice the investigation if the employees were made aware of the existence of the CCTV cameras.
Before installing covert video cameras, employers should, amongst other things:
- Consider whether there is a less intrusive way of achieving the employer’s objective;
- Ensure that covert monitoring is only carried out for as short a period as possible; and
- Ensure that as few individuals as possible are affected (monitored).
Employers should also conduct a Data Protection Impact Assessment before embarking on any form of employee recording (including non-covert surveillance) to ensure that they are compliant with the GDPR and the Data Protection Act 2018.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership
