Covert Surveillance – A Breach Of The Right To Private Life?

The question of whether an employer can introduce covert surveillance over its employees has been a longstanding bone of contention in the Courts.

In the recent case of Lopez Ribalda and others v Spain, the European Court of Human Rights held that there had been no violation of the Article 8 of the European Convention on Human Rights right to respect for private and family life when a Spanish supermarket installed covert video surveillance where there was a high level of theft.

Lopez Ribalda and others v Spain

Facts of the case

Ms Lopez Ribalda and four other employees worked as cashiers at a supermarket chain.

In June 2009, the manager of the supermarket noticed that there were significant discrepancies in stock amounting to as much as €20,000 a month. In response, the supermarket installed CCTV cameras.

The cameras aimed at identifying possible thefts by customers were visible. However, other cameras aimed at recording possible thefts by employees at cash desks were hidden. Signs were put up informing those present that CCTV was in use, but the supermarket failed to specifically notify employees about the concealed cameras.

The cameras recorded Ms Lopez Ribalda and colleagues stealing items and helping colleagues and customers to steal items. The employees admitted involvement in the thefts and were dismissed. They subsequently brought unfair dismissal claims, arguing that the surveillance had been unlawful.

Decision

The Tribunal and High Court held that the covert surveillance had been lawfully obtained and justified despite the fact that prior notice had not been given to the employees. They ruled that the supermarket had a legitimate aim of detecting theft and that the surveillance had been necessary and proportionate.

In their claims before the European Court of Human Rights, the employees argued that the use of the covert footage in the unfair dismissal proceedings was a breach of their right to privacy under Article 8 and infringed their rights under Article 6 to a fair hearing.

The European Court of Human Rights ultimately ruled that there had been no infringement of either the Article 8 right to privacy or the Article 6 right to a fair hearing. They held that the following principles should be borne in mind by Courts when considering whether it is proportionate to install covert surveillance:

  1. Whether employees had been notified of the possibility of surveillance;
  2. The extent of the monitoring and degree of intrusion;
  3. Whether the employer had a legitimate reason to justify monitoring;
  4. Whether it would have been possible to install a less intrusive monitoring system;
  5. The consequences of the monitoring for employees; and
  6. Whether employees had been provided with appropriate safeguards.

Comment

Whilst Article 8 states that everyone has a right to respect for his private and family life, his home and his correspondence, it is important to note that this is not an absolute right. A balance must be struck between the interest of the public and the requirements of the protection of an individual’s fundamental rights, and such a right should not be interfered with except:

  • In the interest of national security, public safety or the economic well-being of the country;
  • For the prevention of disorder or crime;
  • For the protection of health or morals; or
  • For the protection of the rights and freedoms of others.

The decision in this case is by no means a green light for employers to carry out as much covert surveillance as they wish. It was particularly important in this case that employees had been notified of the visible cameras and the monitoring was limited to an area in a public space. The surveillance was also only carried out for a limited and specific period of time, and ceased once the thieves had been identified.

Employers will need to carry out a careful balancing act and should record any reasons for their decisions and considerations as evidence that they have given due consideration to the issue of proportionality. It is also advisable for employers to maintain a strict policy that covert video surveillance will only be carried out in exceptional circumstances, and to set out the circumstances in which covert surveillance may be conducted in an appropriate CCTV policy.

How can Nelsons help?

For further information or to comment on this article, please contact a member of our expert Employment Law team in DerbyLeicester or Nottingham on 0800 024 1976 or via our online form.