In June 2009, a manager at one of the stores belonging to a family-owned supermarket chain noticed that there were irregularities between stock levels and what was actually sold in-store on a daily basis.
As a result, the company installed both visible and hidden cameras, but only told its employees about the visible ones. The five workers suspected of theft were called to individual meetings where, after being shown the videos, admitted their guilt.
Three of the five then signed a settlement agreement agreeing not to challenge their dismissal before the labour courts, while the company agreed not to initiate criminal proceedings against them. The other two applicants did not sign an agreement.
Decision of lower courts
All five subsequently brought claims of unfair dismissal. These were rejected by the lower courts on the basis that, where there is a reasonable suspicion of theft, employers can interfere with an employee’s right to privacy. Installing the covert video equipment was therefore “appropriate to the legitimate aim pursued, necessary and proportionate”.
Relying on Article 8 (right to respect for private life) and Article 6 (right to a fair trial), the applicants complained to the ECrtHR about the company’s use of covert video surveillance and the courts’ use of the data obtained to find that their dismissals had been fair.
Decision of ECrtHR
Although the acts were carried out by a private company, the ECrtHR held that countries have a positive obligation under the European Convention to take measures to ensure respect for private life. The Court therefore had to examine whether the State had struck a fair balance between the employee’s right to respect for their private life, the employer’s right to protect its property and the public interest when administering justice.
The Court also considered the specific provisions under Spanish law. The Personal Data Protection Act provided that individuals were entitled to be informed “previously and explicitly and precisely and unambiguously” of personal data and how the data will be processed. This also applied to video surveillance to the extent that a distinctive sign had to be in place indicating the areas under surveillance and a document setting out how the information will be processed. In this case, the employer did not inform the employees that cameras had been installed focusing on the cash desks and of their rights under the data protection legislation.
As the employer had not complied with the domestic data protection legislation the ECrtHR considered that the use of covert surveillance was not justified. In particular the company could have given advance notification to the employees even in a general manner that video surveillance was being installed and how the information would be processed.
In relation to the employees’ claim that by relying on the video material the domestic court had breached their Article 6 right to a fair hearing the Court found that the video material was not the only evidence the domestic courts relied on when upholding the dismissal decisions and the applicants had been able to challenge the recordings in court. Their claim under Article 6 therefore failed.
Comment
In reaching its finding the ECrtHR distinguished this case from a previous one in which the use of covert video surveillance was held not to have infringed the individual’s right to privacy. In that case the surveillance was limited in time (two weeks) and was focused on particular individuals. This was in contrast to the present case where the decision to carry out covert surveillance was based on a general suspicion against all staff. It is therefore clear from this case that covert surveillance by employers should be the exception not the rule.