Covert surveillance and the right to a private life

Covert surveillance in the workplace has always been a thorny issue for employers with case law placing strict conditions on when and where it can be used.

Many employers will, therefore, be pleased with a recent European Court of Human Rights (ECtHR) case, which ruled in favour of the employer and held that no violation of the Article 8 right to respect for private and family life had occurred following the installation of covert video surveillance in the workplace.

Covert surveillance background

In Lopez Ribalda & others v Spain a group of supermarket employees brought a case alleging that their right to a private life under Article 8 of the European Convention on Human Rights had been violated.  The supermarket had experienced a high level of theft and installed a limited number of surveillance cameras above the tills for two weeks to try and ascertain where the theft was occurring.  It did not tell the employees that these cameras were being installed or that the employees were being recorded for the purpose of detecting criminal activity.

Shortly after the cameras were installed, the supermarket caught several employees stealing or helping customers to steal items from the store.  A number of employees were dismissed and they subsequently brought claims for unfair dismissal claiming that the surveillance had been unlawful.  The claims reached the Spanish High Court who determined that the surveillance had been justified as the employer had a reasonable suspicion of theft, it had been appropriate to the legitimate aim of detecting theft, and had been necessary and proportionate.

Grand Chamber decision

As a result of this decision, the employees brought claims in the ECtHR citing Article 8 and the right to a private life.  The employees’ claims were initially upheld by a chamber in the ECtHR but the Grand Chamber overturned this decision finding that there had been no violation of Article 8. The ECtHR noted that a fair balance needed to be struck between the individuals’ rights and the public interest.  It is generally accepted that any surveillance should be proportionate and accompanied by adequate and sufficient safeguards against abuse.

When deciding that the surveillance was necessary and proportionate the ECtHR took into account the following:

• the employer had a legitimate reason for installing the surveillance as they had a suspicion of theft, wished to prevent further thefts and wanted to catch and punish those responsible for the thefts;
• the employees should not have had a high expectation of privacy in the location where the cameras were installed as it was in a public place as opposed to, for example, a staff room;
• the surveillance only continued for a short duration and was stopped as soon as those responsible were identified; and
• the recordings were viewed by a limited number of people and only those who needed to see them.

The ECtHR also noted that if the employer had told the employees in advance about the surveillance then it would have defeated the aim of trying to catch the culprits.

The employees’ criminal conduct may also have been a key factor in the ECtHR’s decision.

Comment on covert surveillance

Before employers think that this case can be used to justify monitoring they should remember the ECtHR’s decision in the case of Barbulescu v Romania.  In this case, the Grand Chamber held that the employer was not entitled to monitor the employee’s personal emails which had been sent using a work-related Yahoo account.  This was because the employee had not been told in advance about the extent of possible monitoring and had an expectation that his employer would not view the actual content of private messages.

As well as the Article 8 argument, the use of CCTV in the workplace also raises issue in relation to data protection.  Many CCTV notices state that the CCTV is in place for the purpose of detecting criminal offences.  This means the employer in the above case would have been covered, however, CCTV may also be helpful for the detection of misconduct in the workplace.  This raises the question as to whether employers can use the footage as evidence if they have not told their employees that it may be used for this purpose. At the very least, employers should state in their staff privacy notice that any CCTV footage may be used as evidence in disciplinary and grievance proceedings.

If the employer does not do this and then proceeds to use the footage then there is a risk that the employee may report the matter to the Information Commissioner’s Office as a breach of the Data Protection Act 2018 and General Data Protection Regulation and could allege that any employment proceedings were unfair as a result of the employer using footage that should not have been used.

The Information Commissioner’s In the Picture: data protection code of practice for surveillance cameras and personal information has not been updated to take account of the recent data protection legislation but the code (which will be updated) still contains very useful guidance. Similarly, the Employment Practices Data Protection Code on Monitoring at Work has not been updated either but it is still a useful reference tool for employers. Part 3 contains good practice recommendations for the monitoring of video, audio and electronic communications. It also covers the issues to take into account when considering covert monitoring, for instance, that covert monitoring should only be considered as part of a specific investigation and it should cease once the investigation has been completed.

If you would like expert advice on covert surveillance in the workplace or other employment issues, contact our Employment team.