The European Court of Human Rights has found that the covert surveillance of an employee at his or her workplace must be considered to be a considerable intrusion into his or her private life. It entails a recorded and reproducible documentation of a person’s conduct at his or her workplace, which he or she, being obliged under the employment contract to perform the work in that place, cannot evade.
The five applicants in the case of Lopez Ribalda & ors -v- Spain were cashiers working for a Spanish family-owned supermarket chain, In 2009 their employer notice stock level irregularities and took steps to install both visible and covert surveillance cameras in the supermarket. The visible cameras were aimed at customers and trained on the entrance and exit to the store and the covert cameras were aimed at employees and trained on checkouts. Employees were not notified of the covert cameras and the five applicants were dismissed for their involvement in theft or facilitating thefts shortly after the cameras were installed.
The employees challenged their dismissals before the Spanish courts arguing that their use of covert video surveillance in the workplace without prior notice was unlawful. These challenges were unsuccessful so they raised proceedings before the ECHR alleging that the covert video surveillance violated their right to privacy protected by Article 8 of the European Convention on Human Rights.
The Court held that Article 8 was engaged by the facts. The applicants’ employer in installing the covert cameras had not complied with the Spanish legislation on data protection (which required them to explicitly advise the applicants as to the personal data that would be processed on them). The Spanish Data Protection Agency had also issued an instruction clarifying that this required anyone using video surveillance to place a distinctive sign indicating the areas that were under surveillance.
In these circumstances, the Court found there had been a violation of Article 8 and awarded the applicants 4,000 euros each in respect of non-pecuniary damages.