Covert Surveillance of Employees Breached Privacy Rights
In a recent case, the European Court of Human Rights (ECtHR) has confirmed that an employer’s decision to install hidden cameras in the workplace to monitor suspected employee thefts was a breach of the employees’ rights to privacy. The case follows on from the recent decision in Antovic and Mirkovic v Montenegro where the same Court ruled that the installation of cameras in auditoriums in Montenegro University breached the privacy rights of two Professors.
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 privacy rights except in certain limited circumstances and conditions. When considering privacy cases, the ECtHR will strike a balance between the rights of both parties.
The recent case of Lopez Ribalda and others v Spain involved an employer supermarket who installed hidden surveillance cameras when they became suspicious that some members of staff could be stealing. The supermarket installed the concealed cameras behind the cash desks where employees worked and as a result, detected that certain employees were committing theft and assisting other co-workers and customers to commit theft. Relying on the covert footage, the five employees were dismissed. The employees brought claims in the Spanish Courts, arguing that their Article 8 rights to privacy and data protection rights had been breached. The Spanish Courts however upheld the dismissals, confirming that the introduction of the hidden surveillance cameras were justified in light of the suspicions of theft, and were both appropriate and proportionate to the issue.
The employees then brought the claim for breach of Article 8 privacy rights, amongst other claims, to the ECtHR against Spain.
The ECtHR upheld their argument, confirming that Article 8 had been engaged and that a fair balance had not been struck by the Spanish Courts between the rights of employees to privacy and the rights of the employer to protect their property. The ECtHR commented that covert surveillance of an employee in their place of work represented a significant intrusion into their private life, particularly as they were contractually obliged to attend work and could therefore not avoid being filmed. The ECtHR confirmed that the Spanish state had an obligation to ensure that any measures to protect individual rights were extended to secure respect for private life between individuals and private companies.
When considering whether a fair balance had been struck between the rights of the respective parties, the ECtHR referred to earlier case law on monitoring of employees. In particular, they referred to the case of Kopke v Germany where covert video surveillance had not been found to be a breach of employee rights to privacy in similar circumstances. In the Kopke case, the covert surveillance had been directed at particular employees, was carried out for a restricted amount of time and was limited to covering areas within public access. By contrast, this case involved a general suspicion of theft and the blanket monitoring of employees and had taken place with no time limit and during all working hours.
The ECtHR also confirmed that the employer’s rights could have been safeguarded using alternative, less intrusive, means, for example by notifying the employees in advance of the installation of the surveillance cameras.
The case is yet another crucial reminder of the importance of complying with data protection and privacy laws when utilising camera surveillance in the workplace. In relation to the covert monitoring of employees in the UK, guidance from the Information Commissioner’s Office confirms that it will be rare for such monitoring to be justified and that it should only be carried out in exceptional circumstances. Employers should therefore be extremely cautious in adopting covert systems to monitor individuals at work.
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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