Can employers secretly record staff if they suspect misconduct?

The Grand Chamber of the European Court of Human Rights considered whether the use of hidden video cameras by a Spanish supermarket to monitor suspected workplace theft by several cashiers, violated their right to privacy under the European Convention on Human Rights, in the recent case of Lopez Ribalda and others v Spain.

Ms Lopez Ribalda and four other applicants to the claim, worked as cashiers at MSA, a supermarket chain. A manager of the supermarket found significant irregularities in stock (of up to EUR20,000 per month). As part of an investigation, MSA fitted both visible and hidden cameras. The visible cameras were aimed at identifying possible theft by customers; the hidden cameras were aimed at possible theft by employees at the cash desks. The employees were unaware that they were being closely monitored by the hidden cameras.

Ms Lopez Ribalda and four of her colleagues were caught on video stealing from the store and were later dismissed after admitting to the theft when confronted.

All five employees brought unfair dismissal claims, arguing that the covert video surveillance had breached their right to privacy.

A chamber of the European Court of Human Rights upheld the employees’ claims, finding that MSA had not struck up a fair balance between the employees’ rights to privacy and the employer’s interest in protecting its property. Whilst MSA was entitled to investigate, it should have informed employees that it was monitoring them and restricted the number of employees monitored and the time period of the monitoring.

However, Spain applied for a rehearing by the Grand Chamber of the European Court of Human Rights, which held that there had been no infringement of the right to privacy; the measures taken were necessary and proportionate. The Court considered the following factors:

  • The employer had a legitimate aim for the video surveillance, namely a reasonable suspicion of theft, and it had a legitimate interest in identifying and punishing those responsible.
  • The monitoring took place in a location that was open to the public. The level of privacy employees can reasonably expect will vary dependent on the location. A complete ban on video surveillance in places such as a cloakroom or toilet would be justified, where there is a high expectation of privacy, however it is unreasonable for employees to expect the same level of privacy in public places.
  • Although MSA had not set a duration of the video surveillance from the outset, the surveillance only lasted ten days, and only a restricted number of people viewed the recordings.
  • The recordings had not been used for any other purpose than to investigate the thefts. The extent of the losses suggested that several people had been involved and notifying staff of the surveillance could have defeated the purpose of the video surveillance. Thus, there was no other means in which to fulfil the aims pursued.

Comment

This decision is a common-sense and helpful approach to the use of covert monitoring, where the covert nature of the surveillance is essential to its success.

However, it does not mean that an employer can act with impunity. The Information Commissioner’s Office suggests that covert monitoring should only be undertaken in exceptional circumstances and that it will be rare for covert monitoring of employees to be justified.

Employers need to be careful about carrying out covert surveillance. Employers will have to consider whether covert monitoring is proportionate. A thorough impact assessment should be undertaken, clearly documenting the aim of the recording, outlining any adverse impact for employees and consideration of whether there are any less intrusive ways of tackling the issue. This will enable employers to take a fully informed view of whether the monitoring can be justified. Where covert monitoring is undertaken it should be done for the shortest possible period and affect as few individuals as possible.

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