The European Court of Human Rights has considered whether an employer’s decision to install hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers violated the cashiers’ privacy rights under Article 8 of the European Convention on Human Rights (ECHR).
Article 8(1) of the ECHR states that “everyone has a right to respect for his private and family life, his home and his correspondence”.
In this case, a supermarket cashier and her four colleagues worked as cashiers at a supermarket chain. In June 2009, the manager of the supermarket identified significant discrepancies between the stock levels and what was supposedly being sold in the store. In some months, the discrepancy was as much as €20,000. As part of an investigation, the supermarket installed surveillance cameras in the supermarket. The cameras aimed at possible customer thefts were visible. However, other cameras, aimed at recording possible employee thefts, were concealed. The concealed cameras filmed the area behind the cash desks. The supermarket did not inform its employees or its staff committee that the concealed cameras were in place.
Shortly after the video cameras were installed, the employee and her colleagues were caught on video stealing items, and helping co-workers and customers to steal items. The five employees admitted involvement in the thefts and were dismissed.
All five of the employees commenced unfair dismissal claims, and the dismissals were upheld by the Spanish employment tribunals and on appeal by the High Court. The Spanish courts accepted that, in the circumstances, the covert video surveillance had been lawfully obtained even though prior notice had not been given to the employees. The High Court found that the surveillance had been justified, since there had been reasonable suspicion of theft, appropriate to the legitimate aim pursued, necessary and proportionate.
The employees brought claims against Spain before the ECtHR, and complained that the use of footage taken from the covert video surveillance in the unfair dismissal proceedings had breached their right to privacy under Article 8 of the ECHR.
The ECtHR upheld the employees’ Article 8 claim, finding that the Spanish courts had failed to strike a fair balance between the rights involved.
Were the employees’ privacy rights infringed?
The court observed that 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 cannot avoid being filmed.
The court therefore had to examine whether the Spanish Courts had struck a fair balance between the employees’ right to respect for their private life and both their employer’s interest in the protection of its property rights, and the public interest in the proper administration of justice.
Weighing up the competing factors, the court noted that the covert surveillance was carried out in the context of an arguable suspicion of theft, which warranted an investigation. On the other hand, the covert video surveillance in this case was not targeted at particular individuals, but rather it filmed all the staff working on the supermarket’s cash register, over a period of weeks, without any time limit and during all working hours.
Consequently, the court did not consider that the surveillance had been justified. The court observed that the employer’s rights could have been safeguarded by other means, notably by informing the employees in advance of the installation of a video surveillance system.
In the UK, guidance published by the Information Commissioner’s Office states that it will be rare for covert monitoring of employees to be justified and that it should only be done in exceptional circumstances.
It is therefore advisable for employers to maintain a strict policy that covert video surveillance will only be carried out in highly exceptional circumstances where the employer reasonably believes that there is no less intrusive way of tackling the issue. Where covert monitoring is undertaken, it should be done for the shortest possible period and affect as few individuals as possible.