Covert recording of employees: No breach of human rights

In López Ribalda and others v Spain, the Grand Chamber of the European Court of Human Rights (ECtHR) has held that it was not a breach of Article 6 (right to a fair trial) or Article 8 (right to respect for a private life) of the European Convention on Human Rights, to covertly record employees as part of an investigation into suspected theft and for the recording to be used at trial.

The applicants worked as cashiers in a Spanish supermarket chain. In June 2009, the manager of the supermarket identified significant stock discrepancies. As part of an investigation, the employer installed CCTV cameras in the supermarket. The cameras aimed at identifying possible thefts by customers were visible and were signposted. However, concealed cameras were also installed to record possible thefts by employees at the cash desks. The employees were not notified of the covert cameras.

The applicants were dismissed after being recorded on the covert cameras stealing items and helping others to shoplift. The footage was used against the applicants in their unfair dismissal proceedings. The applicants argued before the national courts of Spain, and later the ECtHR:

• The use of footage taken from the covert video surveillance in their unfair dismissal proceedings had breached their right to privacy under Article 8; and
• The use of the footage in their unfair dismissal proceedings had infringed their rights under Article 6, which provides that “in the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] tribunal …”

The ECtHR considered a number of factors regarding the proportionality of the video-surveillance, namely:

• Whether the employees had been notified
• The extent of the monitoring
• The degree of intrusion and whether the employer had legitimate reasons

As the surveillance at issue in this case lasted for 10 days and was limited to the checkout in a public area, the ECtHR held that this was not disproportionate. The employer’s reasonable suspicion of gross misconduct by employees over a number of months and the extent of the losses could also be a justification for the monitoring.

Employers are advised to be extremely cautious when adopting covert cameras and other intrusive measures to monitor staff. Employers should consider whether the surveillance is proportionate by weighing up the intrusion on employees’ private lives against business needs. The decision making should be clearly documented.  There are also other laws to consider in relation to covert recording, including the Data Protection Act 2018, as CCTV images will constitute personal data.