March 9, 2018

New Case Puts Focus on Fairness when Monitoring Employees with CCTV

The use of CCTV surveillance to monitor employees has come into sharp focus following a Judgment in the European Court of Human Rights (ECHR) that tightens the understanding for employers over what surveillance is acceptable.

Article 8(1) European Convention on Human Rights (ECHR) states “everyone has a right to respect for his private and family life, his home and his correspondence”.

In this case – Lopez Ribalda & Ors v Spain – the ECHR held that covert surveillance at work breached this Article 8 right to privacy.

Investigating thefts at work with CCTV

Ms Lopez Ribalda and her four colleagues worked as cashiers at a supermarket chain in Spain. In 2009 the manager of the supermarket noticed significant cash discrepancies between stock levels and what was supposedly being sold, sometimes amounting to as much as €20,000.

As part of the investigation, CCTV was installed: some of these were visible, however concealed cameras were also installed to film the area behind the cash desks. Crucially, no employees were informed that these concealed cameras had been installed. Ms Lopez Ribalda and her colleagues were subsequently caught stealing and dismissed.

Unfair dismissal claim against covert surveillance

The employees proceeded to bring unfair dismissal claims, and as part of these claims the Spanish courts found that the covert CCTV footage had been lawfully obtained.

However the ECHR disagreed, finding the covert surveillance breached the employees’ Article 8 rights. The ECHR compared this case with the case of Kopke v Germany when making their decision, where covert surveillance was found not to infringe Article 8 rights in factually similar circumstances.

In the Kopke case, only particular employees under suspicion were targeted by the surveillance, which was carried out over a limited period of two weeks and only covered the area surrounding the cash desk.

In contrast, in the Lopez Ribalda case, the covert CCTV had not targeted specific individuals but rather filmed all staff working over an indefinite period. Furthermore, the decision to install the CCTV equipment was based on a general suspicion against all staff based on stock irregularities.

While the ECHR had to balance the employee’s right to privacy with the employer’s interest in protecting their property, they observed that the employer’s rights could have been safeguarded by informing the employees in advance of the installation of CCTV equipment and providing them with information prescribed by data protection legislation.

Each of the five applicants was awarded €4,000 in non-pecuniary damages by the Court.

UK data protection legislation and surveillance

In the UK, the guidance provided by the Information Commissioner’s Office (ICO) states that it will be rare for covert monitoring of employees to be justified. Covert recording should only be done in exceptional circumstances, such as where it forms part of a specific investigation into suspected criminal activity.

Covert CCTV monitoring (or indeed any other form of covert surveillance) will only be justified if openness would be likely to prejudice the prevention or detection of crime or equivalent malpractice, or the apprehension or prosecution of offenders.

If you are considering covert surveillance of your employees, it is essential you make a realistic assessment of these considerations. Your policy should be that covert CCTV surveillance will only be carried out in highly exceptional circumstances, where you reasonably believe there is no less intrusive way of tackling the issue.

Guidance for Moorepay customers

If you need further guidance on CCTV or surveillance in the workplace we can provide you with detailed case-by-case guidance, as well as supplying legally compliant policies and procedures for your staff to follow.

Furthermore, on 25th May 2018 the General Data Protection Regulations come into force in the UK. This represents an overhaul of the current data protection regulations.

If you have not yet put in place actions to ensure compliance with GDPR please get in touch with us for a step-by-step guide.


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About the author

Nicholas Stott

Having initially studied International Development and Politics at Leeds University, Nick converted to Law, graduating from the College of Law London in 2008. Nick trained as a solicitor at a law firm based in London’s West End, before qualifying as an Employment Solicitor in 2010. Since then, Nick has advised businesses and individuals on all aspects of employment law and has particular experience advising businesses from the healthcare, IT and restaurant industries. Nick also has extensive experience undertaking Employment Tribunal litigation.