Eye Spy: Can an employer introduce covert surveillance over its employees?

A growing issue in offices is the question of surveillance. Increasingly sophisticated tools now exist to monitor employees’ entry, exit and movement in the offices. In some places, employees are even invited to microchip themselves to facilitate simple activities from access to obtaining lunch. In each of these scenarios, the employees know that they are being monitored, and (ideally) they also know why.

What if an employer does not want to tell the employee they are being watched? Is this ever OK? The European Court of Human Rights (ECtHR) considered this in López Ribalda v Spain [2019]ECHR 1874/13.

Background

Ms López Ribalda was one of 5 employees (the “Employees”) who worked for a supermarket chain (the “Employer”) in the suburbs of Barcelona as cashiers and sales assistants.  The Employer noticed inconsistencies between stock levels and sales, and began an internal investigation. As part of the investigation, the Employer installed two sets of CCTV cameras.

The first set of cameras (the “Visible Cameras”) were placed at the entrance and exit of the store. The Employees and other staff members were informed that the Visible Cameras were installed as the Employer suspected theft. The other set of cameras (the “Covert Cameras”) were installed facing the checkout counters, and monitored the tills and the surrounding area. The Employer did not inform staff of the Covert Cameras.

The Covert Cameras revealed a number of workers engaged in theft of goods. Fourteen workers (including the five Employees), were dismissed summarily as a result.

European Court of Human Rights

After failed unfair dismissal claims at various levels of the Spanish court system, the Employees brought an action against the Spanish government, arguing that by permitting the Employer to use Covert Camera footage in this way, it was failing to protect the Employee’s rights to privacy under the European Convention on Human Rights (ECHR). 

Decision

The Employees were  successful initially in the ECtHR Chamber. The Spanish Government appealed to the Grand Chamber, which ruled that the Employee’s rights had not been infringed.
The ECHR does not grant an absolute right to privacy; however, any restrictions to the right must be justified and proportionate. 

The ECtHR noted that domestic courts should take the following into account when assessing proportionality:

1.  Whether the employee has been notified of the possibility of surveillance by the employer;
2.  The extent of the monitoring and the degree of intrusion into the employee’s privacy;
3.  Whether the employer had provided legitimate reasons to justify monitoring and the extent thereof;
4.  Whether it would have been possible to set up a monitoring system based on less intrusive methods  and measures;
5. The consequences of the monitoring for the employee subjected to it;
6. Whether the employee has been provided with appropriate safeguards.

The Employees were subjected to surveillance due to a suspicion of theft, which they were told about in respect of the Visible Cameras. 

The monitoring was limited to an area in a public space. This was particularly important. The ECtHR noted that employees might expect a higher level of privacy in a cloakroom or toilet, and a lower one in public areas.

Covert Camera surveillance ceased once the investigation was over and the thieves had been identified. Only the Employer’s manager, legal representative and the Employees’ union representative viewed the Covert Camera footage before the Employees finally saw it during the domestic court proceedings, and the Employer used the footage solely to identify and discipline the Employees.

The ECtHR were satisfied that the Spanish court system had carried out a detailed balancing act, considering the justification for surveillance of the Employees.

What lessons can Employers learn from this judgement?

The United Kingdom is a signatory to the ECHR. This applies regardless of the UK’s uncertain membership of the European Union. Employers must be prepared to justify their reasons for surveillance of employees without their knowledge, even where there is suspicion of wrongdoing. When planning either covert or visible surveillance of their employees at work, employers should carefully weigh up the intrusion into their employee’s private lives with the ostensible aim of the proposed surveillance.  It is good practice to record this decision making to verify that the employer has considered proportionality carefully.