When will covert monitoring of employees be lawful?

Installing hidden CCTV leading to workplace dismissals did not violate employees' rights to privacy.

Most EU Member States have laws specifically regulating video surveillance, the majority of which prohibit covert video surveillance of staff by their employers. In the UK, Information Commissioner's Office (ICO) Guidance (which has not been updated since the GDPR and new Data Protection Act came into force) suggests that employers may be justified in exceptional circumstances in covertly recording employees, for example where there is suspicion of a criminal offence or serious misconduct.   

Surveillance of employees has been considered a number of times by the European Court of Human Rights (ECtHR). Recently, the Grand Chamber of the ECtHR has considered the case of a group of Spanish workers who argued that the Spanish courts' handling of their employment claims involving covert recording breached their right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

Case details: López Ribalda and Others v Spain

Ms Ribalda and four others worked as cashiers at a Spanish supermarket. The store manager identified tens of thousands of Euros' worth of missing stock. Theft was suspected, and CCTV was installed. Some cameras were openly installed in the store, whilst covert cameras were used specifically to monitor cashiers' desks. Signs were erected advising that CCTV was in use in the store, but staff were not made aware of the hidden cameras.

Over a period of ten days the hidden cameras caught five staff, including Ms Ribalda, stealing items from the supermarket. On the basis of this Ms Ribalda and her colleagues were dismissed. All dismissed staff then brought unfair dismissal claims. They argued that the covert surveillance was unlawful because, under Spanish data protection law, the employer should have clearly identified the areas under surveillance, but had not done so in respect of the cashiers' desks.

A Spanish tribunal and High Court held that the covert recording was justified on the basis that the employer had a reasonable suspicion of theft and that the covert monitoring was a necessary and proportionate act aimed at detecting theft. It allowed the covert footage in evidence and dismissed the claims.

Appeal to the European Court of Human Rights

Ms Ribalda and her colleagues took their case to a chamber of the ECtHR, bringing a claim against the Spanish state for failing to uphold their rights under Article 8 ECHR. They argued that, by allowing the use of the footage from covert video surveillance in the unfair dismissal claims, the Spanish courts had breached the claimants' right to privacy under Article 8 of the ECHR. In particular, reference was made to the Spanish law requiring the notification of the areas being recorded.

The chamber upheld the claim on the basis that the Spanish courts had failed to strike a fair balance between the rights of the employer and the employees. In particular, the chamber felt the surveillance was not sufficiently limited in time and scope.

The Spanish state appealed the decision to the court's Grand Chamber, which overturned the initial decision and found that there had not been an infringement of Article 8.  In coming to this decision, the Grand Chamber relied on six factors established in prior cases of this kind concerning covert workplace monitoring.

The factors referred to were:

i)        whether the employee was notified in advance of possible monitoring and how clear the notification was about the nature of it;

ii)       the extent and degree of monitoring and the degree of intrusion into the employee's privacy. This considers the level of privacy expected in the area being monitored as well as the limitations in time and space and the number of people who have access to the results;

iii)     whether the employer provided legitimate reasons to justify monitoring and its extent. The more intrusive the monitoring, the weightier the justification required;

iv)     whether a less intrusive monitoring system could have achieved the employer's aim based on an assessment of the particular circumstances of the case;    

v)       the consequences of the monitoring for the employee subjected to it and, in particular, of the use made by the employer of the results of the monitoring and whether the results were used to achieve the stated aim of the employer; and

vi)     whether the employee was provided with appropriate safeguards in respect of the monitoring.

When applied to Ms Ribalda's claim, the Grand Chamber concluded that the Spanish courts had properly considered these factors in the round when coming to their decisions.

Can covert monitoring be justified?

It is interesting to note that three judges dissented to the majority decision, questioning the conclusion that the Spanish courts had properly weighed up the respective rights of the employer and employees. This dissenting judgment questioned the courts' decision in light of recent technological changes in society, and suggested that a stricter application of the factors outlined above should be used when considering covert surveillance.

In terms of the impact of this case in the UK, it serves to re-affirm the current understanding that covert surveillance of staff is permissible provided that the action is justifiable. In particular, the clarification of the six factors as set out above will help employers to better understand whether any covert surveillance they propose to take is justified, when considered altogether.

Covert monitoring should only be used in exceptional circumstances when justified, for example, by a suspicion that criminal activity or serious malpractice is taking place, and where open monitoring would hamper the prevention or detection of that activity. Covert monitoring should be of short term duration, used only for a specific investigation and footage should be shared only on a need to know basis. The use of covert monitoring in private spaces, such as toilets, should be avoided.