No spying on the job
Human rights briefing: the European Court of Human Rights has determined that covert surveillance of employees in the workplace constitutes a breach of privacy rights
As is well known, article 8(1) of the ECHR provides that everyone has the right to respect for their private life. Under article 8(2), interference with the existence of the right to privacy may not be unlawful if to do so is “in accordance with the law and is necessary in a democratic society… for the protection of the rights and freedoms of others”.
The extent to which this right extends to protect individuals from covert monitoring in their place of work was addressed by a chamber of the European Court of Human Rights (ECtHR) in Lopez Ribalda v Spain (Application nos 1874/13 and 8567/13;  ECHR 14) (9 January 2018).
A supermarket in Spain detected some irregularities between stock levels and what was actually sold on a daily basis, amounting to losses of over €80,000 over a five month period. The employer installed surveillance cameras, both visible and hidden, in order to investigate. The purpose of the hidden cameras was to record and control possible employee thefts; they were directed at checkout counters. Employees were given prior notice of the installation of the visible cameras but not the hidden cameras.
A number of employees were recorded helping co-workers and customers steal items and stealing them themselves. They were dismissed and submitted unfair dismissal claims, which were dismissed at each domestic level, with the Spanish employment tribunal and courts holding that the use of covert surveillance was justifiable and their dismissals fair.
In their claim before the ECtHR, the employees complained that the covert video surveillance ordered by the employer, as well as the recording and use of the data obtained in the proceedings before the domestic courts, had breached their article 8 rights.
The court observed that covert video surveillance of an employee at their workplace must be considered a considerable intrusion into their private life. It entailed a recorded and reproducible documentation of a person’s conduct at their workplace. The question for the court was therefore whether the Spanish courts had struck a fair balance between the employees’ privacy rights and both their employer’s interest in protecting its property, as well as the public interest in the proper administration of justice.
Whilst the surveillance was carried out in investigation of a suspicion of theft, the court noted that Spanish legislation contained specific provisions on personal data protection, namely, that the employees were entitled to be “previously and explicitly, precisely and unambiguously informed” of the processing of such data. The domestic courts considered that the use of covert surveillance, in breach of data protection laws, had been justified in the circumstances and was necessary and proportionate. However, the ECtHR took the view that this factor, along with the fact that covert surveillance was not specifically aimed at individual employees and was used without any limit in time, amounted to a breach of article 8. The court considered that the employees’ rights could have been safeguarded by informing the employees in advance of installing the cameras, as well as adhering to the data protection legislation.
This decision is distinguished from the court’s earlier decision in Köpke v Germany  ECHR 1725, in which no breach of article 8 was found in factually similar circumstances. In Köpke the covert surveillance was carried out over a limited period, covered a specific area, targeted particular individuals suspected of theft and did not breach domestic data protection laws. Whilst the contrast between these two decisions gives an indication of where the ECtHR will draw the line in privacy cases, it should also be noted that in Antovic and Mirkovic v Montenegro  ECHR 1068, the ECtHR held by a majority of four to three that the use of CCTV cameras in a lecture hall amounted to a breach of the article 8 rights of two lecturers who were notified of the presence of the cameras. The dissenting view was that this took the notion of private life too far.
In the UK the use of covert CCTV is in breach of data protection law unless used for crime or taxation purposes or for exercising or defending legal rights. The Information Commissioner’s Office Employment Practices Code states that senior management should normally authorise any covert monitoring, and they must be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice and that notifying individuals about the monitoring would prejudice its prevention or detection.
Pamela Keys, director, Employment Unit, Anderson Strathern LLP