Can an employer rely on covert CCTV recordings in order to fairly dismiss an employee when there are concerns over theft? If they do so, does this breach the employee’s Article 8 right to privacy?

This question was recently considered in the Grand Chamber of the European Court of Human Rights in Lopez Ribalda & Others v Spain.

A supermarket manager identified a number of stock discrepancies and installed a number of CCTV cameras as part of an investigation. The cameras aimed at customers were clearly visible, however there were also cameras covering employees with the aim of recording possible employee thefts that were concealed. The employees were not specifically informed of the existence of the concealed cameras, although signs were put up in the supermarket advising that CCTV was in use.

The concealed cameras identified 5 members of staff stealing items from the supermarket. Ultimately, all 5 members of staff admitted the offence and their employment was terminated.

They subsequently claimed for unfair dismissal in the Spanish Employment Tribunal arguing that the covert recordings were unlawful and breached their right to privacy making their dismissals unfair.

The claims were eventually heard in the Grand Chamber which had to consider the fair balance to be struck between competing private employer and public employee interests under Article 8 right to privacy. Spanish data protection law requires employers to inform employees in advance if cameras are in place, however the Grand Chamber stated that this was just one factor to consider. In making its decision, the Grand Chamber took into account the following factors:

  • The employer had a legitimate reason for the CCTV in that there was a suspicion of theft and it was a legitimate interest for them to identify those responsible;
  • The CCTV was used in areas that were open to the public and therefore the employees had a limited expectation of privacy in these areas compared with, for example, the toilets;
  • As soon as the culprits were identified, the covert recordings were stopped;
  • Access to the recordings were limited to those people who had a strict need to view in order to progress the disciplinary proceedings.

Having taken into account all of the various factors, the Grand Chamber held in these circumstances the use of covert CCTV in the workplace did not breach the employees’ right to privacy and their dismissals were fair.

This case highlights a tricky question that we as employment and data protection lawyers are asked regularly. It is certainly not approval for blanket covert surveillance but suggests that the courts may be leaning towards a more common sense approach. The Information Commissioner’s Office, responsible for the UK’s data protection guidance, states that covert recording of employees will rarely be justified and should only be carried out in exceptional circumstances.

If you are considering covertly recording your employees for whatever reason, or would like further advice on CCTV policies and employee monitoring, please contact the writer Ellie Leatherday on 0114 228 3255 or ellie.leatherday@luptonfawcett.law or any of our specialist Employment or Data Law team who would be happy to help.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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