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Covert Surveillance in the workplace: does it breach the right to privacy?

Published 19 April 2018

Yes, is the answer, the use of hidden cameras in the workplace did violate the right to privacy of employees who were dismissed for theft as well as the Date Protection laws. This is according to the European Court of Human Rights.

CCTV cameras are become more prevalent in the workplace and the question that was dealt with by the European court’s(1), Was the right to privacy breached when an employer installed covert cameras because of suspected theft?.

Background of the case

In June 2009, a manager of a family-owned chain of supermarket based in Spain (2) discovered significant irregularities between stock levels and what was actually being sold in the store on a daily basis. Over the course of five months between February and June 2009, the losses amounted to a total sum in excess of €82,000, so as part of the investigation, the employer decided to install surveillance cameras in the store.

They decided to install visible cameras, which were intended to identify potential customer thefts and which were directed towards the entrances and exits of the supermarket. They also installed hidden cameras, which were designed to record possible employee thefts. These cameras were focussed on the check-out counters and the areas behind the cash desks.

The employees were only fully informed about the visible cameras and as a result of the covert recordings the five workers suspected of theft were called to individual meetings to be shown the evidence and they admitted their guilt.

The five employees were called to disciplinary hearings and were dismissed for theft. Three of the employees did sign settlement agreements in order to avoid being reported to the Police, and they subsequently claimed that these were invalid because they had been signed under duress.

All five of them subsequently brought proceedings in the Spanish employment tribunal, claiming unfair dismissal. As part of their claims, they also objected to the covert video surveillance, arguing that it had breached their right to privacy (3).

Decision of the Spanish Courts

Both the Spanish employment tribunal and the High Court upheld the dismissals as fair. The main evidence supporting the fairness of their dismissals was the recordings resulting from the covert surveillance, as well as other witness statements. They found that the use of covert video surveillance in the workplace without prior notice had been in compliance with Spanish law and was appropriate as there were substantiated suspicions of theft that justified interference with the employees' right to privacy.

The claimants then lodged claims in the European Court of Human Rights(ECtHR), arguing that the use of footage taken from the covert video surveillance had breached their right to privacy under Article 8 of the European Convention on Human Rights as well as the inappropriate use of their personal data to obtain their dismissals.

European Court of Human Rights decision

The ECtHR decided that the Article 8 right to privacy was engaged and decided that covert video surveillance of an employee at their place of work was a considerable intrusion into their private life. The ECtHR also found that, despite the claimants' employer being a private company, the European Convention on Human Rights would still oblige the state to adopt measures designed to secure respect for private life in respect of individuals' relationships with others, including private companies.

The Court therefore had to examine whether the State had struck a fair balance between the employee’s right to respect for their private life, the employer’s right to protect its property and the public interest when administering justice.

The employer had also not complied with the domestic data protection legislation the Court considered that the use of covert surveillance was not justified. In particular the company could have given advance notification to the employees even in a general manner that video surveillance was being installed and how the information (data) would be processed.

Comments

The ECtHR contrasted the decision with another recent case from 2007, Kopke v Germany (4), where it had found that there was no breach of Article 8 in very similar circumstances. In Kopke, employees were also dismissed on the basis of covert video surveillance that showed them stealing from their employer. The key differences between the two cases on which the Court focussed on, were, 1, the video surveillance in Kopke had been targeted at only two specific individuals who were suspected of theft. 2, the surveillance was undertaken for a limited period only for just two weeks. This is in contrast to this case, the video surveillance recorded all staff working on the cash registers over a number of weeks, without any limited time duration. The claimants were each awarded compensation of €4,000, which may seem unfair given the claimants were effectively compensated for their own wrongdoing, as they were clearly found guilty of theft. However, the decision emphasises the importance of compliance with domestic legislation that is in place to protect individual rights and in particular, data protection legislation.

What does this mean for employers?

Covert monitoring should only be carried out in exceptional circumstances and before conducting any covert monitoring, employers should conduct an impact assessment so that they can show clearly why, at the time, open monitoring was not thought to be sufficient, and why covert monitoring is necessary.

The monitoring should be carried out for as short a period as possible and it should be limited to areas where the employer can show it is necessary, that it was proportionate in the circumstances and (if possible) targeted at individual employees.

The Information Commissioner's Code (5)in the UK gives useful guidance on carrying out an impact assessment.

If you would like more information or have any questions do not hesitate to contact us for some free employment law advice.

References

1. European Court of Human Rights - ECHR, CEDH, news, information, press releases [Internet]. [cited 2018 Apr 18]. Available from: https://www.echr.coe.int/Pages/home.aspx?p=home

2. D_12213.pdf [Internet]. [cited 2018 Apr 18]. Available from: http://www.distretto.torino.giustizia.it/documentazione/D_12213.pdf

3. Guide_Art_8_ENG.pdf [Internet]. [cited 2018 Apr 18]. Available from: https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf

4. EuroCases - KÖPKE v. GERMANY, no. 420/07, ECtHR (Fifth Section), Decision of 05.10.2010 [Internet]. [cited 2018 Apr 18]. Available from: http://freecases.eu/Doc/CourtAct/4525967

5. the_employment_practices_code.pdf [Internet]. [cited 2018 Apr 18]. Available from: https://ico.org.uk/media/for-organisations/documents/1064/the_employment_practices_code.pdf

 

 

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