In the Grand Chamber of the European Court of Human Rights
Did the use of covert CCTV to monitor workplace theft violate the employees’ right to privacy? Individuals have the right to privacy under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. This right to privacy, and data protection principles, can both have an impact on the legality of any covert monitoring an employer undertakes. The Grand Chamber of the European Court of Human Rights (ECrtHR) has recently considered whether the installation and use of covert CCTV in the workplace breached the privacy rights of workers because of its intrusive nature. The Grand Chamber was hearing a rare appeal from an earlier ECrtHR chamber decision. The case had been brought by five supermarket cashiers who argued that their employer’s installation of covert CCTV in the workplace had infringed their right to privacy. The supermarket had identified regular, large-scale stock discrepancies and installed CCTV surveillance cameras as part of its investigation. This included covert cameras filming the area behind the tills. The supermarket did not inform its staff that covert CCTV cameras had been installed (which it was obliged to do under Spanish data protection law). Five employees were recorded stealing and/or helping others to steal; they admitted theft and were dismissed. The Spanish domestic courts held those dismissals to be fair, and that the covert CCTV surveillance had been justified and proportionate. The employees successfully brought claims before the ECrtHR for breach of their right to privacy (the chamber decision). The employer successfully appealed to the Grand Chamber, which overturned the earlier chamber decision. The Grand Chamber held that the fact that the employer had not informed the employees that it had installed covert CCTV, as required by Spanish data protection law, was merely one factor to be taken into account; it was not determinative of whether the intrusion on their right to privacy was proportionate. In this case, the employees had a limited expectation of privacy on the shop floor, the duration of the period of monitoring was short, only a small number of people were permitted to see the covert footage, and warning the employees about the covert CCTV cameras could have jeopardised the investigation. Therefore, the Spanish courts had acted within their margin of discretion in holding the intrusion on their rights to privacy to be proportionate and their dismissals to be fair. However, while employers will welcome the Grand Chamber’s decision, it is important to appreciate that it does not mean routine use of covert CCTV in the workplace will always be acceptable. Human rights and data protection overlap in this area, but are separate bodies of law. If CCTV is used, privacy safeguards must be taken and data protection law (which has since been enhanced via the introduction of GDPR) must be complied with. In particular, it is worth noting that the ICO requires a mandatory data privacy impact assessment if an employer intends to track an individual’s location or behaviour. (López Ribalda and others -v- Spain [2019] ECHR 752)
