Case update (2):  Human Rights and Covert Monitoring

Summary: Did covert surveillance of employees under suspicion of theft breach their Article 8 right to private life?

No, held the European Court of Human Rights in López Ribalda and others v Spain available here.

Background:  Organisations often want to check systems are being used correctly and employees are behaving properly. Some want to use covert monitoring to achieve this. The UK regime for covert monitoring (whether of email traffic or by CCTV) is subject to a range of legislation including data protection law and the right to privacy under article 8 of the European Convention on Human Rights (ECHR).

To help employers interpret the data protection statutory framework the Information Commissioner’s Office (ICO) published the:

• ICO Employment Practices Code (available here);
• Employment Practices Code””Supplementary Guidance (Code) (available here); and
• Surveillance cameras and personal information code of practice (CCTV Code of Practice), (available here).

Although this guidance has not yet been updated to reflect the GDPR or Data Protection Act 2018 (DPA 2018), Part 3 of the Employment Practices Code: Monitoring at work, in particular, should still be considered as good practice in the context of monitoring in the workplace.

The guidance emphasises the need for monitoring to be the last resort, and only used where there is a clear and justifiable business reason.

In 2017 in the long-running case of Barbulescu v Romania (see our update here), the Grand Chamber of the European Court of Human Rights (ECtHR) reminded employers that workplace communications as well as personal communications may be covered by the notions of ‘private life’ and ‘correspondence‘. In this case the employee’s article 8 rights had been infringed, partly on grounds that he had not been given notice that the content of his communications, sent via a work account, would be monitored by his employer.

The below decision of the Grand Chamber of the ECtHR in López Ribalda and others v Spain is of interest because it explains that the principles set out in Bărbulescu can be applied to an employer’s use of covert video-surveillance using CCTV.

 Facts: Ms Ribalda, the employee, worked as a cashier in a Spanish supermarket, the employer. The manager of the supermarket noticed inconsistencies in stock levels and sales figures which, over a five month period, resulted in losses of over 82,000 Euros. The employer started an internal investigation and, at the same time, installed CCTV cameras. Some of these CCTV were visible and others were hidden. The visible cameras were located near the entrances and exits of the supermarket. The hidden cameras were placed near the tills.

During a meeting, the supermarket’s staff were told about the visible cameras and the reasons they had been installed, but not about the hidden cameras. Footage taken over a four-day period showed Ms Ribalda and other staff stealing goods and helping customers to steal. The employer used this evidence to dismiss the 14 staff involved.

Ms Ribalda brought a claim in the Spanish courts for unfair dismissal and also claimed that covertly videoing her breached her right to privacy under article 8 of the ECHR and couldn’t be used to justify her dismissal.

The lower courts in Spain did not uphold her claim where Ms Ribalda’s defence of “how dare you film us stealing from you“ was not appreciated.  However, Ms Ribalda  appealed to the ECtHR, who agreed with her that these recordings violated her privacy. The Spanish Government appealed and the matter came before the Grand Chamber of the ECtHR.

The Grand Chamber held that the employer’s use of covert surveillance was justified and its judgment provides guidance on the principles to be applied to covert video surveillance:

1. Notification – whether the employee has been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation of such measures;
2. Extent – the extent of the surveillance by the employer and the degree of intrusion into the employee’s privacy;
3. Justified legitimate reason – whether the employer has provided legitimate reasons to justify covert video-surveillance and the extent thereof;
4. Less intrusive alternatives – whether it would have been possible to set up a surveillance system based on less intrusive methods and measures;
5. Consequences – the consequences of the surveillance for the employee subjected to it; and
6. Safeguards – whether the employee has been provided with appropriate safeguards, especially where the employer’s surveillance operations are of an intrusive nature.

Applying these principles to the facts of this case, the Grand Chamber found that the covert surveillance was justified because:

• the scale of theft and number of employees involved in it was considerable;
• monitoring only took place for a very short period of time;
• the covert cameras were in a public area of the supermarket where there was a low expectation of privacy;
• only a few people could access and view the footage;
• the footage was only used to monitor theft;
• it wasn’t appropriate to inform the staff beforehand; and
• there were no less intrusive ways of catching the thieves.

Implications: Although a helpful decision for employers, you should never install covert cameras without taking advice as the law around this is tricky. The judgment is by no means a green light to blanket surveillance, but rather that use of covert video recording will not breach Article 8 in certain circumstances and subject to the six principles set out.

It is advisable for employers to maintain a policy that covert video surveillance will only be carried out in exceptional circumstances where the employer reasonably believes that there is no less intrusive way of tackling the issue and where authorised by senior management. Where covert monitoring is undertaken, it should be done for the shortest possible period and affect as few individuals as possible.