News & Insights

Covert monitoring VS right to privacy

William Grassick reviews a recent European ruling on balancing an employee’s right to privacy where there is suspicion of wrongdoing.

Last month the European Court of Human Rights (ECtHR) published its judgment on whether an employer’s covert monitoring of suspicious employees working at supermarket tills was a violation of Article 8 of the European Convention on Human Rights (ECHR) (which provides “a right to respect for … private and family life”).  It found that it was not a violation.

The case arose following numerous thefts in a supermarket near Barcelona.  Between February and June 2009 losses totalling €82,310 were identified.  In response, the manager installed both visible and hidden CCTV cameras, and informed the staff only of the visible ones above the entrance and exit.  The hidden ones, monitoring several tills, subsequently revealed numerous thefts by staff.  Five such members of staff became the applicants in the ECtHR case, which they brought after unsuccessfully challenging their dismissals in the Spanish courts.  These courts had dismissed the claims, and the latter found no violation of the Spanish Constitution.

At the initial hearing on 9 January 2018, the ECtHR disagreed, and found that Article 8 had been violated, on the grounds that recording tills at all hours was a disproportionate measure, and that general information about the cameras could have been provided.  However, following an appeal application by the Spanish Government, the matter was referred to the Grand Chamber at the ECtHR which reversed this decision and confirmed that the covert monitoring in this particular case did not violate Article 8.

The Court noted that the monitoring was targeted to the particular areas where thefts were likely to have been committed.  It could be justified by a legitimate aim of the employer which could not be achieved by a less intrusive method.  While the three of the five applicants who worked at the tills could not have avoided being filmed during the ten-day surveillance, their workplace (a supermarket) was “open to the public” and “the activities filmed there, namely the taking of payments for purchases by the customers, were not of an intimate or private nature.”  The length of the monitoring period was not excessive and the circulation of the recordings was also controlled.  Therefore the Spanish courts were correct in finding that the monitoring was a proportionate response to the suspected thefts.

Employers should note that if they have serious concerns about an employee’s behaviour they may be able to use CCTV without the employee’s knowledge and without infringing human rights, but only in very exceptional circumstances.  Employers should tread very carefully when determining if covert monitoring can be justified. Only an overriding requirement relating to the protection of significant public or private interest could justify covert monitoring and there must be an alternative less intrusive measure available that could have achieved the desired outcome.  We strongly recommend obtaining legal advice prior to commencing any covert monitoring of employees.