Clandestine Cameras and Criminal Cashiers: Monitoring Employees Without Breaching Human Rights

CCTV in operation. We have all seen the bright yellow and black signs alerting us to the fact we are being watched. Video surveillance is a clear deterrent to those who may consider acting outside the boundaries of what society would consider reasonable and desirable. But how would you feel if you discovered that your employer had been filming you without your knowledge or consent? Suddenly the assumption shifts away from preserving the peace to potentially infringing human rights. After being contested for nearly seven years this exact question reached the European Court of Human Rights in October 2019 in the case of López Ribalda and Others v. Spain.

When a Spanish supermarket discovered which members of staff had been stealing from the business they were fired and the supermarket sought to recover their losses. A total of €82,310 had been stolen between February and June. The supermarket set up hidden cameras to record certain checkout tills and discovered that three cashiers and two store assistants had adopted a practice of scanning items for each other but not paying for them. The five employees claimed unfair dismissal which failed following production of the video evidence. Whether the tribunal infringed the employees’ human rights by admitting the footage was therefore brought into question.

Article 8 of the European Convention of Human Rights (ECHR) protects the right to respect for private and family life for European citizens. This does not necessarily guarantee a person’s privacy but an obligation to respect it, allowing proportionate levels of interference in accordance with relevant laws, in pursuit of a legitimate aim or where necessary in a democratic society.

The case of López concerns the private lives of the employees. Although it may sound unusual that an employee’s life may be considered ‘private’ while working in a busy supermarket, the application of Article 8 is rather broad. An individual’s private life can extend to public places and professional activities. The right is more likely to be engaged where monitoring is systematic or targeted, as was the case here. The court agreed that Article 8 applied in López, but had it been infringed?

The court referenced a number of considerations that should be taken into account, namely:

  • Whether the employees had been notified;
  • The extent of the monitoring and degree of intrusion;
  • The legitimacy of the reasons for justifying the surveillance;
  • The consequences of the monitoring; and
  • Whether appropriate safeguards had been put in place.

On the facts 14 of the 17 presiding judges found that an appropriate balance had been struck between the rights of the employees and the employer’s business interests. The employees had not been notified but the extent of the losses suggested that thefts had been committed by a number of individuals and providing information to any staff member might have defeated the purpose. The cameras monitored the checkout area for ten days and were then taken down as the culprits had been identified. The purpose of the surveillance and subsequent dismissal of the employees was significant but the footage was not used for any reason other than to trace the cause of the losses and to take appropriate disciplinary action. Access to the footage was strictly limited to the business owner and union representatives who were also asked to participate in the disciplinary process.

The three dissenting judges cautioned against the growing capability of covert monitoring made possible through technological advances and the need for appropriate safeguards. Although in the minority in this case their position alludes to the high threshold for satisfactory safeguards which will only get stricter over time. For employers who have or are considering measures for monitoring their employees, whether through video surveillance or through recording email traffic, internet use or phone calls, it is important to assess whether these measures would comply with the considerations above.

It is difficult to discuss monitoring employees without also considering data protection. Although covered separately from the Article 8 ECHR matter in López, employers reading this should note that monitoring employees would also need to comply with GDPR principles and the Data Protection Act 2018. At their core data protection regulations impose principles of fairness, transparency, legitimacy and security on the way personal data is collected, how it is processed, and for what purpose. When implementing measures to monitor employees it may be necessary to carry out an impact assessment, and/or inform employees of the measures introduced, in order to demonstrate compliance with these data protection principles. It is recommended you seek legal advice to help navigate these requirements. At Acuity Law our employment team and our data privacy team are happy to help.

For more information please contact our Employment Team:

Claire Knowles - Partner

Mark Alaszewski - Associate

Rebecca Mahon - Solicitor

Amelia Wheatstone - Solicitor 

Adam McGlynn - Trainee Solicitor

Insight article byAdam McGlynn

Adam McGlynn

Trainee Solicitor

+44 (0)7967 784 754
[email protected]

 

Insight article byClaire Knowles

Claire Knowles

Partner

+44 (0)7896 671 817
[email protected]