Covert surveillance and privacy at work: Important new case-law

It is evident that installing covert surveillance, for the purpose of monitoring employees, conflicts with the employees’ right to privacy.…

It is evident that installing covert surveillance, for the purpose of monitoring employees, conflicts with the employees’ right to privacy.  However, this does not mean that an employer would never be justified in using covert surveillance. 

The issue therefore is how to strike a fair balance between the rights of both the employees and the employer.  The European Court of Human Rights (ECtHR) recent decision in López Ribalda & Ors v Spain helps to clarify where this line should be drawn.

European Convention on Human Rights and UK Law

Article 8 of the European Convention on Human Rights (ECHR) gives individuals the right to respect for their private life, unless interference with this right is necessary for a specified reason, such as preventing crime and protecting the rights and freedoms of others.  The Convention has been incorporated into UK law by the Human Rights Act 1998.

Previous ECtHR Decisions

The ECtHR has previously ruled on cases involving covert surveillance allegedly interfering with an individual’s right to privacy under Article 8 ECHR.

In Köpke v Germany a supermarket cashier was dismissed for gross misconduct for theft, on the basis of covert video surveillance evidence obtained by the employer.  She unsuccessfully challenged her dismissal in the German courts before bringing proceedings before the ECtHR, claiming her rights under Article 8 ECHR had been infringed.  The ECtHR rejected her claim, finding that Germany had struck a fair balance between: the cashier’s right to respect for her private life, the employer’s interest in the protection of its property and the public interest in the proper administration of justice.  In this instance, the ECtHR found that the interference had been restricted to what had been necessary. 

In Antović and Mirković v Montenegro the ECtHR held that two professors’ rights to privacy under Article 8 ECHR had been infringed by the university installing surveillance cameras in student auditoriums for the purposes of protecting the safety of people and property, and monitoring teaching.  The ECtHR noted that the concept of private life must be interpreted broadly, to include the right to lead a private social life at work. 

Spanish Law

Spanish data protection law provides that individuals are entitled to be explicitly, precisely and unambiguously informed in advance of details of the existence and use of their personal data.  An instruction issued by the Spanish data protection agency provides that anyone using video surveillance systems should place a distinctive sign indicating the areas under surveillance and have documents available informing individuals of their rights under the data protection law. 

What happened?

The facts in this case were very similar to those in Köpke.  A supermarket chain had installed surveillance cameras after the manager had identified significant discrepancies between stock levels, and what was supposedly being sold in the store.  In some months the discrepancy was as much as €20,000.  The supermarket’s cameras that were aimed at possible customer thefts were visible.  However, other cameras, aimed at identifying possible theft by employees, were concealed.  Further, the supermarket did not inform its employees or its staff committee that concealed cameras were in place. 

Shortly after the cameras were installed, five employees were caught on camera stealing items and helping customers and co-workers to steal items.  The employees admitted involvement in the thefts and were dismissed. 

The domestic courts held that the dismissals had been fair because, in the circumstances, the covert video footage had been lawfully obtained even though no prior notice had been given to employees.  The Spanish High Court found that the surveillance had been justified, since there had been reasonable suspicion of theft, meaning surveillance was necessary and proportionate, appropriate to the legitimate aim pursued. 

The Claims at the ECtHR

Before the ECtHR, the employees argued that the use of footage from the covert video surveillance in the unfair dismissal proceedings had breached their right to privacy under Article 8 of the ECHR.

They also argued that the use of the footage had infringed their rights to a fair trial under Article 6 of the Convention. 

The ECtHR Decision

The ECtHR upheld the employees’ Article 8 claim, by a majority, finding that the Spanish courts had failed to strike a fair balance between the rights involved.  Covert video surveillance of an employee in their workplace must be considered a considerable intrusion into their private life, since an employee is contractually obliged to report for work at their workplace, and therefore cannot avoid being filmed. 

It was noted that the surveillance was carried out in the context of an arguable suspicion of theft, which warranted investigation.  However, the use of covert surveillance contravened specific provisions of Spanish data protection law and guidance issued by the Spanish data protection agency. 

The court also acknowledged that in Köpke covert video surveillance were found not to have infringed the individual employees’ privacy rights, in factually similar circumstances.  However, in Köpke specific employees had been under suspicion and were therefore targeted by surveillance measures, and the surveillance had been carried out over a limited period, of just two weeks.  In contrast, the video surveillance in this case was not targeted at particular individuals; it filmed all the staff, over a period of weeks, without any time limit and during all working hours.  Consequently, the ECtHR did not consider that the surveillance had been justified.

The ECtHR took the view that the employer’s rights could have been safeguarded by other means, including informing the employees in advance of the installation of video surveillance and providing them with the information required under the data protection legislation.

The ECtHR did, however, reject the argument that the use of the footage had infringed their rights to a fair trial under Article 6 of the ECHR.

What this means for UK employers

The subtle differences between the employer’s actions in this case, and in Köpke, help to indicate where the line should be drawn between protecting an employer’s interests and respecting an employee’s private life under Article 8.  The more targeted, and time-limited approach in Köpke meant that the court could find that the intrusion into the employees’ privacy was necessary to further the employer’s interest of protecting its property. 

In the UK, the Information Commissioner’s Officer has published guidance that states that covert monitoring is rarely justified and should only be done in exceptional circumstances, such as in a specific investigation into suspected criminal activity.  Supplementary guidance also explains that covert monitoring will only be justified where openness would be likely to prejudice the prevention or detection of crime, or the apprehension or prosecution of offenders.  The guidance adds that employers should only implement covert monitoring with senior management authorisation.  This guidance is likely to be updated in the near future in the light of GDPR.

With this in mind, covert video surveillance should only be carried out in highly exceptional circumstances. You must reasonably believe that there is no less intrusive way to deal with the issue.  If you do decide to implement covert monitoring, you should ensure that it is done for the shortest possible period of time, and should be targeted at as few individuals as possible. 

Paul McFarlane (paul.mcfarlane@weightmans.com) is a Partner in the Employment, Pensions and Immigration team and is based in London. If you have any questions, please do not hesitate to get in touch with Paul or speak to your usual Weightmans advisor.

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