Covert surveillance in the workplace and privacy rights.
The European Convention on Human Rights (ECHR) provides in Article 8(1) that “everyone has a right to respect for his private and family life, his home and his correspondence”. An interesting case from Spain in the European Court of Human Rights – López Ribalda and others v Spain (Application nos. 1874/13 and 8567/13) – has shed some light on what this means for employees in the context of covert surveillance when balanced against an employer’s interest in protecting its property.
In this case a supermarket was worried about high levels of theft. The employers installed surveillance cameras. The ones aimed at customers were visible. The ones aimed at staff were covert. Fives employees were caught and later admitted stealing or helping colleagues or customers to steal. The employees brought unfair dismissal claims alleging the covert surveillance had breached Article 8 of the ECHR. The European Court of Human Rights agreed and ordered Spain to pay each employee €4,000 damages, plus costs and expenses.
In coming to this decision and distinguishing it from a similar supermarket case from Germany, the Court was influenced by: (i) domestic Spanish data protection law and guidance; (ii) the failure to tell the employees about the cameras; (iii) the point that the surveillance was not targeted at particular individuals but all staff; and (iv) the fact that the surveillance went on without limit for weeks during all working hours.
In the UK the Information Commissioner’s Office has published guidance on the covert monitoring of employees. Employers would be wise to implement a written company policy which provides that covert video surveillance will only be carried out with the authority of senior management and only in exceptional circumstances where there is a reasonable belief that there is not a less intrusive way of dealing with the issue. Any monitoring should affect as few staff as possible and be for the shortest period possible.