The European Court of Human Rights has further developed its view on the correct use of surveillance in the workplace. In the case Lopez Ribalda v. Spain, on 9 January 2018, the Court ruled in favor of five Spanish employees that had been dismissed on the basis of video material that proved they were stealing from the supermarket they worked in. The employees alleged the video material had been obtained in breach of their right to privacy.
Similarly to the case Barbulescu v. Romania, the Court has analyzed both the right of the employer to protect its business and the right to privacy of the employees. The Court's reasoning to determine whether the surveillance of employees breaches their right to privacy revolves around the following criteria:
- Informing the affected employees in advance. In both, Lopez Ribalda v. Spain and Barbulescu v. Romania, the Court found that the employer had not informed the employees of the monitoring measure implemented. In the first case the employer informed the employees of the installation of some surveillance cameras, but consciously kept silent on other cameras used to discover the theft. The Court considered that such intrusion in the employee's activities can only be legitimate if the employee is aware of it.
- Reasons justifying the measure adopted. In Lopez Ribalda v. Spain, the employer justifies the use of hidden cameras by its suspicion that the employees could be stealing. In the case of Barbulescu v. Romania, the employer justifies the monitoring of communications on the basis that some employees were using work equipment for private purposes. In both cases, the Court has considered that those suspicions were not sufficient to justify covert monitoring, especially because they were too broad and affected all the employees.
- Proportionality of the measure and the aim pursued. For the monitoring to be fair, it must be in accordance with the aim pursued. In Lopez Ribalda v. Spain, the Court considered there were other ways to prove the misconduct of the employees. Another fact the Court took into account was the amount of time the measure was in place. The fact that there were no time limitations proved the unfairness of the measures in both cases.
- Level of intrusion and use of the data obtained from the surveillance. Furthermore, in Lopez Ribalda v. Spain, the Court considered that the treatment of the video material resulted in a violation of the Spanish Personal Data Protection Act. The same happened in Barbulescu v. Romania: the Court considered that the surveillance measures were unfair because, since they implied access and treatment of personal data, the employer would have needed the employee's consent.
From both cases, we can conclude that the employer’s employee monitoring rights are being narrowed in light of the right to privacy of employees. Accordingly, in order to determine the legitimate use of surveillance methods, employers shall take into account if the employee was duly informed; the existence of a legitimate justification; the proportionality of the measure and the compliance with national personal data regulations. It may be a good time to review your internal policies on the matter!