Hot on the heels of the recent case of Antovic and Mirkovic v Montenegro, which we reported in our update of 15 December last year, the European Court of Human Rights has again had to address the question of whether covert video surveillance of staff at work was a breach of their right to privacy under Article 8 of the European Convention on Human Rights. In Lόpez Ribalda and others v Spain (Application numbers 1874/13 and 8567/13), five individuals were shown - based on covert video evidence - to have stolen goods from a supermarket where they worked. They claimed that the use of covert surveillance was a breach of their right to privacy.

The five claimants all worked as cashiers at MSA, a family owned supermarket chain in Spain. In early 2009, MSA became aware of discrepancies between the stock levels in one of its supermarkets and the amount of sales. Over the course of five months between February and June 2009, the losses amounted to a total sum in excess of €82,000. As part of the investigation, the employer decided to install surveillance cameras in the store. These included visible cameras, which were intended to identify potential customer thefts and which were directed towards the entrances and exits of the supermarket. MSA also installed hidden cameras, which were designed to record possible employee thefts. These cameras were focussed on the check-out counters and the areas behind the cash desks. While MSA notified employees of the installation of the visible surveillance cameras, employees and the staff committee were not informed of the hidden surveillance cameras.

Shortly after the cameras had been installed, the five employees were shown on the video recordings to have assisted each other and customers to steal items by scanning various items then cancelling the purchases. This meant that customers and other members of staff could leave the store with items which had not been paid for.

The five employees were called to disciplinary hearings and were dismissed for theft. All of them subsequently brought proceedings in the Spanish employment tribunal, claiming unfair dismissal. As part of their claims, they also objected to the covert video surveillance, arguing that it had breached their right to privacy.

Spanish courts' decisions

Both the Spanish employment tribunal and the High Court upheld the dismissals as fair. They also decided that using covert surveillance had been appropriate, as there were substantiated suspicions of theft that justified interference with the employees' right to privacy.

The claimants then lodged claims in the European Court of Human Rights (ECtHR), arguing that the use of footage taken from the covert video surveillance had breached their right to privacy under Article 8 of the European Convention on Human Rights (ECHR).

The ECtHR decided that the Article 8 right to privacy was engaged and also found that covert video surveillance of an employee at their place of work was a considerable intrusion into their private life. The ECtHR also found that, while the claimants' employer was a private company, the ECHR would still oblige the state to adopt measures designed to secure respect for private life in respect of individuals' relationships with others, including private companies. The ECtHR therefore had to decide whether the state, in view of its positive obligations under Article 8, had struck a fair balance between the claimants' right to respect for their private life and the employer's interest in the protection of its organisational and management rights to protect its property.

The ECtHR noted that the covert video surveillance had been installed after losses had been identified, which raised a suspicion of theft from both employees and customers. However, it observed that the employer had not complied with its obligations under the Spanish Personal Data Protection Act, which required it to inform employees of the existence of a means of collecting and processing their personal data. The ECtHR went on to consider whether this was justified by the reasonable suspicion of theft and whether there had been any other equally effective means of protecting the employer's rights, which would have interfered less with the claimants' right to privacy.

The ECtHR decided that the claimants' right to privacy under Article 8 had been breached. While it acknowledged that there had been a substantiated suspicion of theft, the video surveillance was not aimed at the claimants specifically but at all staff who were working on the cash registers. The video surveillance was in place over a number of weeks during all working hours without any specific time limit. Accordingly, the ECtHR did not feel that the employer's measures were proportionate and under the data protection legislation, the claimants all had a reasonable expectation of privacy while at work, which had been infringed. The claimants were each awarded compensation of €4,000.

Although this decision is consistent with the recent ECtHR judgment in Antovic, the decision and, in particular, the award of compensation may seem surprising as the claimants were effectively compensated for their own wrongdoing, as they were clearly found guilty of theft. However, the decision emphasises the importance of compliance with domestic legislation that is in place to protect individual rights and in particular, data protection legislation.

The ECtHR contrasted this case with a decision from 2007, Kopke v Germany, where it had found that there was no breach of Article 8 in very similar circumstances. In Kopke, employees were also dismissed on the basis of covert video surveillance that showed them stealing from their employer. The key differences between the two cases on which the ECtHR focussed were that first, the video surveillance in Kopke had been targeted at two specific individuals who were suspected of theft. Secondly, the surveillance was undertaken for a limited duration of two weeks. In contrast, in this case, the video surveillance recorded all staff working on the cash registers over a number of weeks, without any limited time duration. These factors were deemed important by the ECtHR in finding that the right to privacy under Article 8 had been breached.

Guidance for employers on the use of video surveillance in the workplace has been published by the Information Commissioner (see part 3 of the Employment Practices Code). In particular, the Code makes it clear that covert monitoring of employees should only be undertaken in exceptional circumstances and as part of a targeted investigation into suspected criminal activity. It is therefore important for employers to undertake a considered assessment before covert video surveillance is undertaken and ensure that this is in compliance with the ICO Code and any internal policies and procedures.