Employer’s covert video surveillance did not breach employees’ privacy rights

Carrying out covert video surveillance of employees suspected of theft did not breach their right to privacy, the European Court of Human Rights has ruled. 

Covert surveillance used to identify thieves

A Spanish supermarket identified significant stock discrepancies and installed CCTV cameras. The cameras aimed at possible theft by customers were visible.  Those covering the area behind the cash desks, and so aimed at employees, were hidden. Notices in the store indicated CCTV was in use but the supermarket did not specifically tell employees about the concealed cameras.  The cameras identified a number of employees involved in the thefts. They admitted their involvement and the supermarket dismissed them. 

Employees claimed breach of privacy rights 

The employees claimed unfair dismissal in the Spanish Courts, but the courts ruled their dismissals were fair. They then brought a claim in the European Court of Human Rights, arguing that by upholding their dismissals based on the covert surveillance the Spanish Courts had failed to protect their privacy rights.  

European Court of Human Rights rules privacy rights not breached

The Grand Chamber of the European Court of Human Rights dismissed the claim. It agreed that covert surveillance was necessary and proportionate in this case as:

• The employer had a legitimate interest in identifying and punishing the employees responsible for the thefts 
• The monitoring took place in areas open to the public and so employees did not have a high expectation of privacy
• The monitoring only lasted 10 days in total and ceased as soon as the culprits were identified 
• Only the manager, the supermarket’s lawyers and the trade union representative viewed the footage
• The employer only used the footage to investigate the thefts and not for any other purpose
• There was no other way of catching the culprits. The extent of the losses suggested a number of employees were involved and so informing staff of the use of covert CCTV would defeat its purpose. 

Implications

Employers should limit use of covert surveillance to cases where they reasonably suspect criminal activity or similar malpractice and where less intrusive methods will not achieve the desired result. The decision to carry out covert surveillance should be taken by senior management. Any covert surveillance should be targeted, confined to places were expectations of privacy are low and time limited. In addition, employers should only show the footage to those who really need to see it for the purposes of the investigation.  

Case: Lopez Ribalda and other v Spain