In the case of López Ribalda and others v Spain, the Grand Chamber of the European Court of Human Rights (ECtHR) considered whether the use of hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers violated their privacy rights under Article 8 of the European Convention on Human Rights (ECHR).
Ms López Ribalda and four other applicants worked as cashiers at MSA, a supermarket chain. In June 2009, the manager of the supermarket identified significant stock discrepancies, of up to EUR20,000 a month. As part of an investigation, MSA installed CCTV cameras in the supermarket. The cameras, aimed at identifying possible thefts by customers, were visible.
However, other cameras, aimed at recording possible thefts by employees at the cash desks, were concealed. Signs were put up in the supermarket to indicate that CCTV was in use but MSA did not specifically inform employees or the staff committee about the concealed cameras.
Shortly afterwards, Ms López Ribalda and her colleagues were caught on video stealing items or helping co-workers and customers to steal items. Five employees admitted involvement in the thefts and were dismissed.
The employees brought unfair dismissal claims, arguing that the surveillance had been unlawful and a breach of their right to privacy under Article 8 of the ECHR. The claims were dismissed by the Spanish employment tribunals and on appeal by the High Court of Catalonia.
The tribunal and High Court held that the covert video surveillance had been lawfully obtained even though prior notice had not been given to the employees. The High Court accepted that the surveillance had been justified by the employer's reasonable suspicion of theft, had been appropriate to the legitimate aim of detecting theft, and had been necessary and proportionate.
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".
Article 8(2) provides that a public authority shall not interfere with the exercise of the right to privacy "except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country; for the prevention of disorder or crime; for the protection of health or morals; or for the protection of the rights and freedoms of others.”
The employees pursued their claims to the ECtHR which upheld their Article 8 claim, finding that the Spanish courts had failed to strike a fair balance between the rights involved.
The court did not share the domestic courts' view that the surveillance had been justified, as this had not taken account of the fact that the measure was in breach of the Spanish legal requirement to inform those affected about the collection of their personal data.
Spain applied for the case to be referred to the Grand Chamber of the ECtHR for a re-hearing. The application was accepted.
The ECtHR, sitting as a Grand Chamber, held that there had been no infringement of the Article 8 right to privacy.
The ECtHR considered that the employer’s failure to inform the employees of the existence of the cameras under Spanish Law was not determinative of whether the intrusion on their Article 8 rights was proportionate. It was merely one factor to be taken into account.
In view of the employees' limited expectation of privacy on a shop floor, the limited duration of the monitoring, the small number of people who were allowed to see the footage and the fact that telling staff about the cameras could have jeopardised the prospect of catching the thieves, the Spanish courts were entitled to hold the intrusion to be proportionate and the dismissals to be fair.
Christine Jamieson, a Paralegal in our Employment team commented;
“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, such as part of a specific investigation into suspected criminal activity. Employers should therefore ensure they proceed with caution and assess whether such action is justified.
“Employers who are considering carrying out CCTV monitoring should seek appropriate legal advice before doing so. They should also maintain strict policies on monitoring activities. Covert video surveillance should only be carried out in exceptional circumstances and where 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. Appropriate measures should be put in place to ensure data collected is stored in accordance with the Data Protection Act 2018.”
