Can employers use covert CCTV to monitor suspected criminal activity at work?

28 / 11 / 2019

What constitutes an acceptable level of workplace monitoring remains a challenge for many employers. In the case of López Ribalda and others v Spain the European Court of Human Rights (ECtHR) initially found that it was not permissible to use CCTV for monitoring as it violated the employees’ privacy rights under Article 8 of the European Convention on Human Rights (ECHR). However, this has been overturned by the Grand Chamber of the ECtHR (“Grand Chamber”). So where does the law stand?

Case Overview
The Grand Chamber considered whether an employer’s use of hidden cameras to monitor suspected workplace theft by employees violated their privacy rights under Article 8 of the ECHR, and whether use of the footage in an employment tribunal violated their right to a fair hearing under Article 6.

A manager of a Spanish supermarket chain MSA had identified significant stock discrepancies. To investigate, MSA installed CCTV cameras on the shop floor. Those cameras which were aimed at recording customers were in plain sight with clear signage that CCTV was in use. However other cameras aimed at recording possible thefts by employees were hidden and the employees were not specifically informed of their existence. Five cashiers, including the claimant, Ms López Ribalda, were caught on video stealing items, or helping colleagues and customers to steal items. All admitted the wrongdoing and were dismissed. Despite their admissions and the fact that three out of five signed settlement agreements in return for MSA not initiating criminal proceedings, all five brought unfair dismissal claims against MSA. They argued that they should have been informed of the surveillance and that covert video surveillance breached their right to privacy (Article 8 of the ECHR), and right to a fair trial (Article 6 of the ECHR).

The Spanish courts originally found in favour of MSA but this was overturned by the ECtHR.

Decision by the Grand Chamber
The Grand Chamber held that there had been no infringement of the right to privacy or a right to a fair trial.

Various factors were considered, including necessity and proportionality in balancing the legitimate interests of the employer to protect its business and dismiss dishonest employees vs the employees’ right to privacy. Given that (1) the surveillance had been limited to the checkout area, (2) the applicants had worked in an area open to the public and therefore expectations of privacy would be lower than in places that are private by nature, and (3) the surveillance had only lasted 10 days, and (4) only a limited number of people had viewed the recordings, the Grand Chamber took the view that the intrusion into the applicants’ privacy was necessary and proportionate.

The Grand Chamber noted the imbalance of power in employment relationships, observing that while consent to video surveillance or data collection in general is not required under domestic, European or international standards, it is generally required that individuals are informed clearly in advance of any data collection.

However, provision of information is just one of the criteria to be considered in assessing proportionality under Article 8. Only an “overriding requirement relating to the protection of significant public or private interests” could justify the lack of informing individuals prior to collecting the data.

The court concluded that the “slightest suspicion” of wrongdoing would not be sufficient to justify covert surveillance. However, in this case, a reasonable suspicion of serious misconduct combined with the substantial losses suffered by the employer constituted an appropriately weighty justification.

What is the position in the UK?
The Information Commissioner’s Office has stated that it will be rare for covert monitoring of employees to be justified and it should only be done in exceptional circumstances, such as specific investigation into suspected criminal activity. Further, covert surveillance will only be justified if openness would prejudice the prevention or detection of crime or equivalent malpractice.

Advice for Employers
This decision is helpful for employers but still restricts the ability to covertly monitor. Employers need to balance the intrusion of employees’ privacy with their own business needs, taking into account the imbalance of power.

Covert surveillance should:
• be used in exceptional circumstances;
• affect as few people as possible;
• be used for the shortest possible period; and
• be accessed by as few people as possible (only those necessary for the investigation).

Although it may defeat the covert nature of surveillance, having clear policies and signage will strengthen the employers’ justification for monitoring.