It all began as an everyday tale of Montenegrin academics and some animals, and ended up in a European Court of Justice decision with potentially significant consequences for employers across the EU and the UK.
Professors Antovic and Mirkovic teach maths at the University of Montenegro. Giving them full notice, the University installed video surveillance in its lecture halls. It said that this was to ensure the safety of property and people and to allow for the monitoring of teaching. There had been case, it contended where non-students had turned up for maths lectures (what, really?) and where those students who did turn up had brought in both alcohol and tobacco. There had also been some “bringing in of animals” (species unspecified, but the mind boggles) which had apparently been something of a distraction. In its defence to any allegation of over-surveillance, the University noted that the footage was accessible only to the Dean, recorded no sound and was of such low resolution that you couldn’t recognise most of the faces anyway.
Despite the lecture theatre clearly being a place of work, their having received full notice of the video installation and their never being in the room alone, the two professors alleged the surveillance to be an interference with their rights to protection for their private lives under Article 8 of the European Convention on Human Rights. They made two main arguments. First, that the cameras were not necessary for the purposes for which they had been installed, and second, that even though the halls were clearly a workplace, they still had a right of privacy within them.
On the first argument, Antovic and Mirkovic contended successfully that there was no evidence of any threat to safety in the lecture halls and, paraphrased only slightly, that there was nothing in them worth stealing anyway. They accepted that putting cameras at entrances to the University itself would have made sense in the detection of intruders and any accompanying livestock, but not assuming that they would pop into a maths lecture on the way through. On a technical point, moreover, you could scarcely monitor teaching quality through footage without an audio track. In the end, they said, the University had put the wrong equipment in the wrong place to achieve its own objectives in capturing that data.
The second point is of potentially much broader application. The ECJ looked at what is included within the “private life” protected by Article 8. You do not leave your private life behind entirely in the workplace, especially if you include within it the expansion made by the ECJ here. It said that you also have a right to a “private social life” which includes the potential for the individual “to develop his or her social identity“, including from there “the possibility of approaching others in order to establish and develop relationships with them“. The Court noted that one’s private life may include professional activities, since “it is after all in the course of their working lives that the majority of people have a significant, if not the greatest opportunity to develop relationships with the outside world… There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of [one’s] private life“. The University amphitheatre was not only where the professors taught students but also where they interacted with them, “thus developing neutral relationships and constructing their social identity“. The surveillance was also an intrusion because the professors could not evade it by holding their lectures anywhere else.
On the grounds of the second argument the ECJ said that Article 8 was indeed engaged, and on the basis of the first, that the professors’ right under it had been infringed. Each was awarded €1,000 plus costs.
Lessons for employers
- Don’t think that it is because your workplace or you will only see your staff at work, you can put cameras or other monitoring devices wherever you want.
- Both already under the Data Protection Act and in particular under the GDPR, you will need a detailed rationale for your surveillance. What specifically am I hoping to capture? Is that risk real (as in, do I have any evidence for it?) or merely fanciful? Is the kit I use going to show me as much as I need for that purpose, but not more?
- Just giving your people notice that they are under surveillance at work will not get you past a failure under 2 above.
- There must be a direct link between the achievement of your legitimate aim from your monitoring on the one hand, and where and how you do it on the other. A camera to detect intruders should be at the main entrance where they would come in, not an internal room where they may not go at all. A camera to detect or deter theft ought to be sited where there is something to steal. A camera to monitor the quality of teaching ought at least to record the teaching given, and so on.
- Nothing in this case make surveillance of your staff unlawful, even if it does catch them constructing their social identities with each other, but it does broaden the scope of what they might legitimately argue to be their private lives and hence the burden on the employer of justifying it, especially in parts of the workplace which might be seen as a “zone of interaction” such as the canteen, rest areas, training rooms, etc.