Under Article 8 of the European Convention on Human Rights, individuals have the right to respect for their private life. In López Ribalda and ors v Spain, the Grand Chamber of the European Court of Human Rights (ECrtHR) held that installing covert surveillance did not violate the privacy rights under Article 8 of former employees caught stealing from their employer.
Basic facts
After noticing some inconsistencies between the stock levels and sales figures over a period of about five months, the manager of a supermarket installed visible cameras directed at the exits and entrances of the supermarket and hidden CCTV camera directed towards the checkout counters. However, the employees were only informed about the visible ones.
Management showed the union representative footage of the hidden cameras which revealed theft of goods at the tills by a number of employees. Prior to being interviewed by the manager the individual employees suspected of theft had a meeting with the union rep who told them that she had seen the video recordings and some of them admitted they had been involved with the thefts.
A total of 14 employees were dismissed after attending individual interviews with management. The dismissal letters informed them that they had been filmed by the hidden CCTV on several occasions between 15 and 18 June 2009. Five of those who had been dismissed brought claims for unfair dismissal. This included three of the five who had signed a settlement agreement to the effect that they would not challenge their dismissal on the basis that the company agreed not to initiate criminal proceedings against them.
The employees argued that by using covert video surveillance the employer had breached their right to privacy and that the recordings should not be used in evidence in the proceedings.
Decisions of lower courts
Taking into account previous case law, the tribunal found that the use of covert video surveillance was proportionate and had not breached the employees’ right to privacy in circumstances where there was a reasonable suspicion of serious misconduct; its use was appropriate to the aim of verifying whether the employee committed the misconduct; and was proportionate because it was limited in time and space. In relation to the three who had signed settlement agreements it found that there was no coercion by the employer and it was plausible that they had signed the agreements to avoid criminal proceedings. As such the settlement agreements were not invalid. The High Court upheld these judgements on appeal.
Relying on Article 8 (right to respect for private life) the applicants complained to the Chamber of the ECrtHR that the company’s use of covert video surveillance breached their right to respect for private life and that by refusing to declare their dismissal null and void the court had failed to protect that right. In addition, the applicants argued that by allowing the recordings as evidence in the unfair dismissal proceedings their right under Article 6 (right to a fair trial) had also been breached.
The Chamber (LELR 561) held that the use of covert surveillance could not be justified. Firstly, its scope was too broad covering as it did all working hours and secondly, the employer’s rights could have been secured by informing employees in advance, even in a general manner, that video surveillance was being installed. There had not, however, been a violation of Article 6. Spain applied for the case to be referred to the Grand Chamber.
Decision of the Grand Chamber of the ECrtHR
In relation to the Article 8 rights, the Grand Chamber observed that the employment courts had not taken into account the employer’s failure to provide the employees with prior notice of the covert surveillance (as required by Spanish domestic law) but that “only an overriding requirement relating to the protection of significant public or private interests could justify the lack of prior information”.
In this case the Court distinguished between the levels of privacy an employee could expect in private places such as toilets or cloakrooms, and places that were visible or accessible to colleagues or the general public as compared to the applicants working in an area open to the public. Taking this together with the legitimate reasons for installing the covert cameras, namely the suspicion of theft based on significant losses to the employer, and the legitimate interest in discovering who was responsible, the Court held that interference with the employees’ privacy was proportionate. This was particularly the case given that the surveillance had only lasted 10 days and a restricted number of people had viewed the recordings.
Although the consequences had been serious in that the applicants had lost their jobs, the Grand Chamber agreed with the lower courts that the videos had not been used for any purpose other than to trace those responsible for the losses and that there was no other measure that the company could have employed to pursue its legitimate aim of discovering who was responsible for the stock losses. A majority of the Grand Chamber concluded, therefore, that there had not been a violation of the employees’ Article 8 right to private life.
As regards Article 6, a majority of the Grand Chamber held that the use of the covert surveillance did not undermine the fairness of the proceedings bearing in mind that the applicants were able to challenge the authenticity of the recordings before the Spanish court and that other evidence was taken into account including the applicants’ statements and the experts’ report comparing the images recorded by the video surveillance and the till receipts.
Comment
Employers should note that the Grand Chamber accepted that a slight suspicion of wrongdoing by an employee could not justify the installation of covert video-surveillance by an employer. Employers should therefore be wary of relying on covert surveillance without considering a less intrusive alternative.