Protection of privacy for employees
What do employers need to be aware of when considering covert recordings in the workplace?
In López Ribalda and Others v. Spain, the European Court of Human Rights has overturned a previous judgment it made in the case of López Ribalda and others v Spain, the case where a supermarket manager covertly filmed shop workers stealing.
In 2009, the applicants, some cashiers and other sales assistants, were employed as by the Spanish supermarket chain M. After noticing inconsistencies between the stock level and the sales figures over a period of five months (amounting to around 80.000 euros), the supermarket’s manager installed both visible and covert CCTV cameras. The former covered the checkout areas and the latter covered the entrance/exit of the supermarket.
The employees were only informed about the installation of the visible cameras pointing towards the entrance and exit. The applicants, together with other staff members, were filmed by the covertly installed cameras and this footage showed the applicants taking part in the theft of
Stock and what also appeared to be helping customers steal items as well. The footage was communicated to a union representative and soon after fourteen employees – including the applicants – were dismissed on gross misconduct grounds.
Three of the five applicants signed a settlement agreement through which they acknowledged their involvement in the thefts and committed themselves not to challenge their dismissal before the labour courts, while the employer company committed itself not to initiate criminal proceedings against them.
Following their dismissal, all applicants commenced unfair dismissal proceedings before the Employment Tribunal questioning the use of covert recordings as evidence and opposing the use of such evidence as a breach of their right to privacy. The Employment Tribunal found no violation of the right with regard to two applicants as it concluded that the recordings were valid evidence and that their dismissal had been lawful. However, the tribunal dismissed the other three applicants’ cases, upholding the employer’s objection that the action was invalid because they had signed settlement agreements. Subsequently, the High Court upheld the first-instance judgments on appeal, arguing that the supermarket’s surveillance had met the criteria because it had been justified owing to suspicions of misconduct, had been appropriate for the aim pursued, and necessary.
Under Article 8 (right to respect for private life) and Article 6 (right to a fair trial) of the ECHR, the applicants complained about the covert video-surveillance and the courts’ use of the data obtained to find that their dismissals had been fair.
The Third Section of the ECtHR, in a judgement on the 9th January 2018 held that there had been a violation of Article 8 and no violation of Article 6. It was held that:
‘while the video-surveillance had been set up on account of legitimate suspicions of theft, it had been broad in scope – not being limited in time, affecting all the employees working at the tills and covering all working hours – and had breached the obligation under domestic law to give prior information, to those persons who were concerned by the collection and processing of their personal data, of the existence, purpose and implementation of the measures.’
The case was referred to the Grand Chamber on 28 May 2018. The Grand Chamber held that the employer’s measure interfered with Article 8. Six key points were devised for the purposes of reviewing whether Article 8 has been breached. These points to consider are:
- whether the employee has been notified of the possibility of the employer utilising video surveillance;
- the extent of the monitoring by the employer and the level of intrusion in to the employee’s privacy;
- whether a legitimate justification has been provided by the employer
- whether less intrusive monitoring has been considered;
- the severity of consequences of the monitoring; and
- the provision of legal safeguards for the employee, such as raising a complaint regarding the nature and level of monitoring.
In relation to Article 6, the Chamber held that the applicants had had the opportunity to contest the use of the recordings and that the courts had given extensive reasoning. The recordings had not been the only evidence considered by the Courts and neither was its authenticity or accuracy contested. In assessing the settlement agreements signed between the employer and three of the applicants, the Court confirmed that no trace of intimidation or duress could be identified.
Practical considerations for employers
On the basis of this latest decision, consideration should always be given by employers in relation to the use of covert recordings and surveillance in the workplace. This may be that policies should outline that covert recordings by employees is deemed to be a disciplinary matter.
Employers may wish to introduce a policy that all hearings will be recorded, but this will need to be balanced with practical implications such as the cost and DPA compliance requirements of implementing such a policy. Consider also whether the proposed intrusion is proportionate, creating a balance between the business needs and the breach of privacy. The organisation will also need to clearly outline the reasoning behind any covert surveillance or recording.
In all circumstances, it is advisable to ask attendees at the start of any hearings or disciplinary meetings whether they are recording and to re-iterate that recording is not permitted.
It should also be made clear that covert recording may amount to misconduct and can result in disciplinary action, and that where it is used post-employment in litigation, it may result in reduced compensation. It can also raise issues regarding data protection issues, raising the risk of action by the Information Commissioner or private proceedings.
As a team of employer solutions lawyers, our employment law experts are on hand to answer any questions you may have about the implications of covert recordings and this court decision, and any other case law, on your business. For specialist employment law advice speak to us.