Employer considerations for workplace surveillance

The European Court of Human Rights' decision in Lopez Ribalda and others v Spain offers a cautionary tale against covert workplace surveillance

Having found significant irregularities in stock levels (of up to €20,000 per month) a manager of a Spanish supermarket fitted both visible and secret cameras as part of a wider investigation. The employees were unaware that they were being closely monitored by the hidden cameras. Five employees were found to be stealing from the store and were later dismissed after admitting to the theft when confronted.

Although the employees’ unfair dismissal claims were unsuccessful in the Spanish courts, the European Court of Human Rights held that their right to privacy under Article 8 of the European Convention on Human Rights had been infringed and awarded €4,000 plus costs and expenses to each employee.

The court found in Lopez Ribalda and others v Spain that the supermarket had not struck a fair balance between the employees’ rights to privacy and the employer’s interest in protecting its property. While the employer was entitled to investigate, it should have informed employees that it was monitoring them in line with Spanish data protection legislation and restricted the monitoring in terms of the time period and the number of employees recorded. This is in contrast with the case of Köpke v Germany where the court found that the correct balance had been achieved as the covert monitoring was for limited periods and restricted to certain individuals.

In the case of Antovic and Mirkovic v Montenegro the court found that employees still have a right to a private life even if working in a public sphere, and therefore the right balance needs to be struck where monitoring public places.

The pervasive theme throughout the above cases is one of proportionality. The Information Commissioner’s Office suggests that covert recordings should only be undertaken in exceptional circumstances – for example where notifying the employees would prejudice the prevention or detection of crime and the apprehension or prosecution of offenders.

In order to consider whether the covert monitoring is proportionate, a thorough impact assessment should be conducted where employers consider their purpose for recording and clearly outline any benefits and adverse implications for employees. This will allow employers to take a fully informed view of whether the monitoring can be justified in the particular situation and to consider whether less-intrusive alternatives can be implemented.

The covert monitoring should not be excessive and should be limited to a certain timeframe and to particular employees. Surveillance cannot be installed in ‘private’ places like toilets or personal offices and should cease once the specific investigation is complete. Any data collected should be stored in a secure place and deleted if it does not relate to the investigation directly.

If employers wish to conduct workplace surveillance that isn't covert they should ensure they have a clear CCTV surveillance policy detailing the purpose and nature of the monitoring. Employers should ensure that all employees know where to access the policy and are expressly told that the surveillance is taking place and how any information obtained will be used, shared and kept. Having told the employees what the purposes are for collecting the data, for example to ensure the safety of employees, the data collected should not then be used for another reason such as monitoring timekeeping.

If you wish to conduct workplace surveillance, you must undertake a risk assessment to establish whether the monitoring is necessary, whether that monitoring outweighs the employees’ general privacy rights, and what measures should be taken to ensure that the infringements on the right to private life are limited to the minimum necessary.

Louise Lawrence is a partner in the employment team at Winckworth Sherwood