Employers will be relieved by the recent European Court of Human Rights (ECtHR) decision that covert CCTV monitoring by a Spanish supermarket in the case of suspected theft was not in breach of the employees’ Convention right to privacy (article 8) and right to a fair trial (article 6).
The supermarket had noticed a number of discrepancies between actual and expected stock levels with losses of up to 20,000 euros per month. It installed hidden cameras in the cashier area for 10 days and did not tell employees. The footage showed employees stealing and 5 were dismissed. They brought claims of unfair dismissal on the basis that the use of hidden cameras was unlawful. These were unsuccessful and they brought claims against Spain in the ECtHR on the basis that use of footage in unfair dismissal proceedings was in breach of their right to privacy and that its use as evidence had violated their right to a fair trial.
The ECtHR found there was no breach of either Convention right as the use of CCTV was proportionate and necessary: the area monitored was public, surveillance was for a short amount of time (10 days), the filming was stopped when they caught the suspects, and as suspected criminal activity was involved, it would have defeated the purpose of installing the cameras to inform the employees about them. Significantly, none of the employees had challenged authenticity or accuracy of the footage and it was not the only evidence; the court had taken into account the employees’ own statements, statements of other witnesses and an expert’s report comparing the footage to the till receipts.
This decision does not give employers carte blanche to use covert surveillance to monitor employees. The ICO’s Employment Practices Code confirms it is rare for covert monitoring to be justified and it should only be used in exceptional circumstances following an impact assessment to decide whether the benefits justify the adverse impact. If an employer decides to go ahead with covert monitoring it should take account of the safeguards outlined in the Code which include ensuring no monitoring takes place where there is an expectation of privacy, such as a toilet or cloakroom, it lasts no longer than necessary, it is only used where there is no less intrusive way of dealing with the issue concerned, it should only be authorised by senior management and should affect as few people as possible. Employers should also consider the Surveillance Camera Code of Practice on covert monitoring which sets out 12 guiding principles. It should be noted that both the ICO Codes are due to be updated following the introduction of GDPR.