Belfast Telegraph

Covert surveillance in work a breach of right to privacy, ECHR rules in Spanish case

By Maxine Orr, Partner in Employment Law

In López Ribalda & Ors v Spain (1874/13), the European Court of Human Rights ruled that covert surveillance in the workplace was a breach of an employee's right to privacy.

In this case, the employees were all cashiers in a Spanish supermarket chain. In June 2009 the employer identified irregularities between stock levels and what was actually being sold in the store. Within months, the discrepancy was nearly €20,000.

The employer subsequently installed surveillance cameras to address the suspected theft. The cameras were set up in different locations throughout the store, some in open view of the supermarket and others concealed cameras behind the cashier desks.

The employees were told about cameras that were aimed at possible customer thefts, but not others that had been covertly located.

The concealed cameras caught the employees stealing items and assisting other co-workers and customers to steal, and the employees admitted the misconduct accordingly.

The employer dismissed the employees from their employment and relied on the covert images as part of this decision.

The employees claimed that their data protection rights and Article 8 right to privacy had been breached by the use of covert recordings by the employer.

The Spanish domestic courts concluded that the covert surveillance was justified as it had a legitimate aim and was necessary and proportionate in the circumstances.

In doing so, the court upheld the dismissals, on the grounds that no other equally effective means of protecting the employer's rights would have interfered less with their Article 8 right to privacy.

The matter was subsequently referred to the European Court of Human Rights (ECHR), which disagreed with the reasoning of the Spanish domestic courts and instead, upheld the employees' Article 8 claim that their right to privacy had been violated by the use of concealed cameras within their workplace.

The court held that the covert surveillance of employees in the workplace was an intrusion into their private life. This was held to be especially so given that the employees were contractually obliged to report for work and thus could not avoid being filmed.

In coming to their decision, the ECHR examined whether the State had struck a fair balance between an employee's right to privacy and an employer's interest in the protection of its business.

They found that a fair balance between the parties had not been achieved and the right to privacy enshrined in Article 8 of the ECHR had been breached.

The ECHR held that in order to be in compliance with EU data protection legislation, employees must be "explicitly, precisely and unambiguously" informed of the existence of a personal data file, how the data will be processed, the recipients of the data and the purpose of its collection.

In this case, it was determined that the employees' lack of awareness of the surveillance meant that their privacy had not been upheld.

This case highlights the significance the ECHR has placed on the privacy of data subjects within the workplace.

In the UK, the ICO has confirmed that in light of the incoming GDPR legislation, covert monitoring of employees can only be justified in exceptional circumstances where informing the employees involved would prejudice the prevention or detection of a crime.

Maxine Orr is a Partner specialising in Employment Law in Worthingtons Commercial Solicitors, Belfast. She can be contacted on 028 9043 4015

Belfast Telegraph

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