Advances in technology provide an ever-increasing number of ways to keep an eye on staff in the modern workplace. Whilst the vast majority of staff can be relied upon to carry out their duties without constant supervision, taking measures, such as installing cameras, in working areas and monitoring internet and email usage can give employers peace of mind and deter disruptive and dishonest behaviour.
However, a recent decision by the European Court of Human Rights is a reminder to employers that there is a careful balance to strike between protecting their businesses on the one hand and upholding human rights on the other.
López Ribalda and others v Spain
Case Details
This case considered whether an employer had breached their employees’ human rights by installing hidden video cameras in the supermarket in which they worked. There were a number of visible cameras put up in public areas to deter theft by customers. In addition, some concealed cameras were installed with a view to capturing any theft by employees. Subsequently, five members of staff were recorded stealing or assisting in the theft of items from the store and were dismissed. The employees argued that the covert recording amounted to a breach of their right to a fair hearing under Article 6 and their right to respect for their private lives under Article 8 of the European Convention on Human Rights.
Whilst the claim under Article 6 was rejected, the European Court of Human Rights agreed that the employees’ Article 8 rights had been breached. Rather than secretly recording staff, it considered that the employer it could have sufficiently protected its business by informing employees in advance that they would be recorded.
Practical tips for employers wanting to monitor their employees
- Before starting to monitor workers, ensure you are aware of the legal requirements which may apply to each method you intend to use. There are various rules about monitoring set out in the Data Protection Act 1998 (soon to be replaced by the General Data Protection Regulations), the Regulation of Investigatory Powers Act 2000, and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 which may apply depending on the circumstances. If you are unsure about which rules apply, seek legal advice.
- Inform workers of the different ways in which you intend to monitor them at work and obtain their consent before starting to do so. Details of monitoring could be included in contracts of employment and/or a separate monitoring policy.
- Consider whether there is any alternative, less intrusive, ways of achieving the same protection for your business, especially in light of the recent decision of the European Court of Human Rights.
- Where monitoring is put in place, ensure that it is applied fairly and consistently across the workforce. If an employee feels that they have been unfairly monitored they may challenge this by way of a grievance or, depending on the circumstances, claims for unfair dismissal or discrimination.
How Nelsons Can Help
For more employee legal advice or to comment on this article, please contact one of our employment law specialists on 0800 024 1976 or via our online form.