The Grand Chamber of the European Court of Human Rights (ECHR) has held that Spanish shop workers’ right to privacy under Article 8(1) of the European Convention on Human Rights was not violated when their employer obtained evidence of theft from covert CCTV footage of the employees.
The case involved five employees who worked as cashiers at a supermarket chain. The employer noticed stock discrepancies and as part of the investigation installed CCTV cameras, both visibly within the store and hidden cameras at the checkouts. Although customers and staff were aware that CCTV cameras operated, the employees were not aware of the concealed cameras. The cameras provided evidence of the staff involved in stealing items and the staff were dismissed. They claimed unfair dismissal on the basis that the surveillance had been unlawful.
The employees claimed that the use of covert surveillance had breached their right to privacy under Article 8 of the ECHR. The High Court in Spain accepted that the surveillance had been justified by the employer’s reasonable suspicion of theft and that it had been appropriate for the legitimate aim of detecting theft. However, the Chamber of the ECHR originally overturned the decision of the Spanish Court, holding that the court had failed to strike a balance between the rights of the employer to protect its property and the workers’ right to respect for their private life. The case was referred to the Grand Chamber of the ECHR for a final ruling.
The Grand Chamber overturned the previous decision by a majority of 14 to three and determined that there had been no breach of the workers right to privacy. The Court held that states should ensure that any monitoring by employers is proportionate and is accompanied by adequate and sufficient safeguards against abuse. It referred to the criteria set out in the Barbulescu case:
- Has the employee been notified of the possibility of surveillance measures? If so was the notification given before the implementation?
- The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy.
- Has the employer provided legitimate reasons to justify monitoring?
- Could monitoring have been established in a less intrusive manner?
- What are the consequences of the monitoring for the employee?
- Has the employee been provided with appropriate safeguards?
In this case the court held that the surveillance had been necessary and proportionate and took into account the following factors:
- The employer had a legitimate reason for the surveillance, the suspicion of theft due to the significant losses that the employer had suffered.
- The extent of the monitoring had been limited as regards the area that it covered and the staff being monitored. The monitoring took place in an area that was open to the public. The employee’s expectation of privacy was therefore lower than in places that were private in nature.
- The duration of the surveillance had not been excessive. The employer had not set a maximum duration of the surveillance, but it had in fact only lasted ten days.
- The surveillance had only been viewed by certain individuals before the applicants had been informed: the Manager, the employer’s legal representative and a trade union representative.
- Although the consequences of the monitoring for the applicants had been significant in that they had been dismissed, the surveillance had not been used for any purposes other than to investigate the thefts and to take the disciplinary measures against those responsible.
- There had been no other means by which to fulfill the legitimate aim. If the employees had been notified of the surveillance then this may well have defeated its purpose. This was significant in that in most cases of surveillance prior knowledge is a requirement.
Our take
Employers will be pleased with this result as it gives better cover when covert monitoring is the only option. However, it should be noted that the dissenting judgement did consider that employers should not be entitled to operate covert surveillance. Indeed the UK Information Commissioner’s Office guidance sets out that it is rare for covert monitoring to be justified and that it should only operate in exceptional circumstances. The decision to implement cover monitoring should still remain a last resort but employers can improve their position by including wording in monitoring policies that clarifies to employees when such surveillance could take place.
