Could You Be Violating Your Employees' Privacy Rights?

Whilst the case concerned aspects of Spanish law, it is a useful reminder of some of the general principles around covert monitoring that will also apply in the UK.

López Ribalda and others v Spain

In 2009, a manager of a Spanish supermarket identified a significant discrepancy between actual and expected stock levels - sometimes as much as €20,000 per month. As part of an investigation the store installed both visible and hidden cameras to monitor the store's cashiers.

The footage showed five employees stealing from the store and helping customers to do the same. The cashiers admitted theft and were dismissed but they later brought unfair dismissal claims in the Spanish courts. The claims were unsuccessful.

The employees challenged the decision on the basis that it was a breach of their Article 8 right to a private life to be covertly monitored by their employer. They also asserted that reliance on the CCTV footage breached their Article 6 right to a fair hearing.

The ECHR agreed that the covert recording was a breach of their right to a private life, on the basis that, under Spanish data protection law, the employees should be informed in advance of such surveillance, but that their right to a fair hearing had not been infringed.

In May 2018, the case was referred to the Grand Chamber to reconsider the decision regarding the covert recording.

ECHR Grand Chamber Decision

The Grand Chamber held there had been no infringement of the Article 8 right to privacy, taking into account the following factors:

• The domestic courts had found that the employer had legitimate reasons for the video surveillance, namely the suspicion of theft, based on significant losses recorded over several months, and had a legitimate interest in discovering and punishing those responsible.
  
  
• The monitoring took place in an area that was open to the public and involved permanent contact with customers. Employees' expectation of privacy was therefore lower than in places that are private by nature, such as a cloakroom or toilet.
  
  
• The surveillance only last for 10 days and stopped as soon as the culprits were identified. The duration was not excessive in itself.
  
  
• Only a small number of people were allowed to view the footage.
  
  
• The recordings were only used by the employer for the purpose of the investigation.
  
  
• The measure was necessary as the extent of the losses suggested a number of individuals were involved and by informing the employees about the cameras, this could have jeopardised the prospect of catching the thieves.

The Grand Chamber concluded a reasonable suspicion of serious misconduct, combined with the extent of the losses, appeared to constitute a weighty justification.

Covert Monitoring in the UK

Covert monitoring is always a difficult issue and the Information Commissioner's Office has published guidance on covert monitoring and CCTV usage. The guidance 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 essential for employers to maintain a strict policy:  covert video surveillance should only be carried out in exceptional circumstances where you reasonably believe that there is no less intrusive way of tackling the issue. Where covert monitoring is undertaken, it should be done for the shortest possible period and affect as few individuals as possible.

A contemporaneous assessment should be made and recorded to evidence your justification for employing covert recording and any measures put in place to limit the impact on the data protection rights. Also it is essential that employers using CCTV have appropriate policies and privacy notices in place to explain how and why CCTV is used and the limited circumstances in which undisclosed surveillance may be utilised.

If you need legal advice on covert monitoring for your organisation, please contact Jo Oliver in our Employment Law team on 0117 314 5361 or complete the below form.