It has been held by the European Court of Human Rights that conducting covert recordings of employees whilst they are at work is in breach of Article 8 of the Human Rights Act, which states that everyone has a right to respect for private and family life.
In the Spanish case of Lopez Richards & Ors v Spain, a supermarket had installed surveillance cameras, some of which were visible to workers and some hidden after discovering discrepancies between stock levels and what was actually being sold. Workers were given notice of the visible cameras but were not informed of the hidden cameras.
Following the installation of the cameras, a number of workers were caught stealing and also assisting customers and colleagues to steal. These workers were subsequently dismissed.
The workers brought proceedings before the Spanish Employment Tribunal (the ‘ET’) for unfair dismissal and claimed that the supermarket had breached their right to privacy under Article 8 and data protection rights. They alleged that their privacy had been violated due to the use of the covert recordings and not being informed that they were being recorded.
The ET ruled that the use of covert surveillance without notice to workers had been in accordance with Article 20 of the Labour Regulations (Estatuto de los Trabajadores) as it allowed ‘an employer to use monitoring and surveillance measures which he or she deemed appropriate to verify that an employee was fulfilling his or her employment duties as long as the employer respects human dignity’. Previous Constitutional Court cases had also held that where there were ‘substantiated suspicions of theft, special circumstances justified interference with an employee’s right to privacy which was considered to be appropriate to the legitimate aim pursued, necessary and proportionate’. In this case, the ET believed that the supermarket had sufficient grounds to conclude that the workers actions amounted to ‘a breach of contractual good faith and abuse of trust’ and therefore the dismissal was fair.
The case made its way up to the European Court of Human Rights (the ‘ECtHR’). The ECtHR held that it could not follow the domestic court’s view that the supermarket had a legitimate aim in carrying out the surveillance due to the fact that it had been carried out over a sustained period of time and did not comply with section 5 of the Personal Data Protection Act. The ECtHR went onto state that the ‘rights of the employer could have been safeguarded, at least to a degree, by other means, notably by previously informing applicants, even in a general manner, of the installation of a system of video surveillance and providing them with the information prescribed in the Personal Data Protection Act.’ The ECtHR therefore concluded that the supermarket had breached the workers’ right to respect for their private life under Article 8 and the domestic courts had failed to find a fair balance between a worker’s right to privacy and an employer’s right to protect their property.
This case was differentiated from the previous case of ‘Köpke’ where it had been held that covert surveillance on employees did not breach an individual’s right to privacy when it had been carried out over a limited period of time and only on two employees.
This is an interesting case as it shows how the courts are viewing covert recording on employees. Employers should be mindful of undertaking such steps and only do so when they can limit the extent of the recording and show clearly that there is a legitimate business reason for carrying out such an exercise. Employers should also have a policy in place which clearly sets out the limited circumstances on which covert recordings may take place in order to protect themselves from claims.
By Emily Jones
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