Does covert surveillance of employees under suspicion of theft breach their right to private life?

Background

The supermarket in question, MSA, had reason to suspect that its employees were involved in thefts from its premises. MSA commenced an investigation into this, which involved placing concealed cameras around the tills and visible cameras in customer facing areas. MSA’s employees were not informed of the covert cameras.

The camera footage captured five employees stealing from the premises and/or allowing customers to do so. The employees were dismissed for gross misconduct, after having admitted to this, but later brought unfair dismissal claims on the basis that not being informed of the covert cameras breached their human rights and made the investigation process unfair.

The Spanish courts accepted that, in the circumstances, the covert recordings had been lawfully obtained even though no prior notice was given to the employees. The surveillance had been justified, since there had been reasonable suspicion of theft, necessary to achieve a legitimate aim.

ECtHR Chamber judgment

The employees appealed to the ECtHR on the basis that the use of footage taken from the covert video surveillance in the unfair dismissal proceedings had breached their right to right to respect for private life or right to a fair trial under Articles 8 and 6 (respectively) of the European Convention on Human Rights (the ECHR).

The ECtHR Chamber by a majority held that there had been a violation of Article 8, but unanimously voted that there had been no such breach of Article 6. Weighing up the evidence, the ECtHR noted the surveillance was carried out following a suspicion of theft  – which had been sufficiently genuine and serious to warrant investigation – but failing to inform the employees of the covert surveillance contravened specific provisions of the Spanish data protection legislation.

The ECtHR drew parallels to another case where covert video surveillance had been installed (Köpke v Germany), which was found not to infringe on employees’ Article 8 rights. The reason was that the surveillance was limited to specific employees under suspicion of theft and had been carried out over a limited period of time. In this case the surveillance was not targeted at certain individuals and carried out over a far larger time limit, during all working hours. The slight differences in the cases of Köpke and López could give an indication of considerations that employers should, and Courts are likely to, take into account.

ECtHR Grand Chamber judgment

On appeal, the Grand Chamber held that no violation of the Article 8 had occurred. The judgment distinguished between the levels of privacy an employee could expect depending on location: it was very high in private places such as toilets or cloakrooms, where a complete ban on video-surveillance could be justified, but it was clearly lower in places that were visible or accessible to colleagues or the general public. Here, the surveillance was limited to the area around the checkouts, rather than the entire supermarket, which was held to be no more than is necessary. This supported the Spanish courts’ judgment. In addition, the ECtHR held that, as the surveillance was over a relatively short period of time (10 days) and viewing of the recordings was restricted to a few employees of MSA, the intrusion into the employees’ privacy had not attained a high enough degree of seriousness to breach their ECHR rights.

The ECtHR did, however, note that there needed to be a reasonable and genuine suspicion of misconduct and the possibility for significant financial loss in order to justify such action in the circumstances.

Three dissenting judges held that, in their view, a fair balance had not been struck and that further safeguards were needed to secure the right to respect for private life at work. They expressed concern about new technologies which make it all too easy to intrude and violate Article 8, and the need for additional safeguards.

The ECtHR held that the use of the recordings did not violate the employees’ right to a fair trial as they had been able to dispute the veracity of the recording, but chose not to do so, and the recordings were not the only piece of evidence relied upon.

What does this mean for UK-based employers?

The ECtHR’s decision may mean employers consider implementing monitoring of employees. However, employers must be wary of falling foul of human rights and data protection laws.

In the UK, the Information Commissioner’s Office has published useful guidance which states that covert monitoring will only be justified in a particular case if openness would prejudice the prevention or detection of crime or equivalent malpractice, or prevent the apprehension or prosecution of offenders. Therefore, following this guidance, and the guidance of the ECtHR above, any employer considering using covert surveillance must ensure that it has tangible evidence on which to base any suspicion, and has considered alternatives, prior to making the decision to implement any covert surveillance.

If you have any questions in relation to implementing monitoring of employees, please do not hesitate to get in touch with a member of our employment team.