Human rights not violated by covert surveillance

In the Spanish case of López Ribalda and others v Spain, the European Court of Human Rights found that the use of covert CCTV cameras to monitor and subsequently dismiss cashiers as part of an investigation into significant stock discrepancies did not violate workers’ right to privacy, nor their right to a fair hearing. This was found to be the case due to factors such as the employees’ limited expectation of privacy on the shop floor, the limited duration of the monitoring and the fact that alerting the employees to the monitoring would have jeopardised the investigation.  

Facts

The Claimants, Mrs Ribalda and four others worked as cashiers at a Spanish supermarket chain. The manager had noticed significant stock discrepancies, which in some months totaled EUR 20,000. The manager launched an investigation and, as part of the investigation, decided to install visible CCTV in the store to identify potential thefts by customers in addition to covert CCTV cameras behind the cash desks to identify potential thefts by employees. Signs in the supermarket indicated that CCTV was in operation in the store, however, employees were not specifically informed that covert CCTV had been installed behind the cash desks.

The CCTV footage captured five employees stealing items and helping both co-workers and customers to do the same. The cashiers admitted the theft and, following a disciplinary process, were dismissed.

The cashiers subsequently brought unfair dismissal claims on the basis that:

• the surveillance had been unlawful under Spanish law, breaching their right to privacy; and
• the use of the CCTV footage in their unfair dismissal proceedings had infringed their right to a fair hearing.

Decision

In making its decision, the court considered several key factors:

• Whether the employee had been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation measures;
• The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy;
• Whether the employer had provided legitimate reasons to justify monitoring and the extent of it;
• Whether it would have been possible to set up a monitoring system based on less intrusive measure;
• The consequences of the monitoring for the employee subjected to it; and
• Whether the employee has been provided with appropriate safeguards, especially where the employer’s monitoring operations are of an intrusive nature.

The Grand Chamber of the European Court of Human Rights held that there had been no infringement of the employees’ right to privacy or their right to a fair hearing. In deciding the measures in this case were necessary and proportionate, the court took into account:

• That the suspicion of theft meant the employer had legitimate reasons for the video surveillance;
• The monitoring took place in a public place;
• The surveillance only lasted for 10 days and was stopped as soon as the employees were caught;
• Only the supermarket manager, the company’s legal representative and the union representative viewed the recordings and the recordings were not used for any purpose other than identifying the thefts; and
• That telling the employees of the covert monitoring would have defeated its purpose.

Comment

In the UK, guidance from the Information Commissioner’s Office states that it will be rare for covert monitoring of employees to be justifiable. Monitoring in this way should therefore only be undertaken where there is a genuine reason to do so, such as suspected criminal activities or malpractice. Employers may, therefore, wish to consult the ICO guidance should they wish to implement such measures.

Employers should maintain a strict policy that covert surveillance will only be carried out in exceptional circumstances where the employer believes there is no less intrusive way of solving the issue. Where covert surveillance is used, monitoring should be obtained as quickly as possible, and only as part of a specific investigation. Employers should also ensure that monitoring stops as soon as the investigation has finished.