Covert surveillance – are you illegally snooping on your employees?

In this case, a Spanish supermarket decided to install surveillance cameras after it uncovered theft at one of its stores. In the store there were visible surveillance cameras installed to detect theft by customers. There were also covert cameras to monitor suspected thefts by the employees, the supermarket cashiers.

Soon after installing the cameras, the footage that the supermarket recorded showed five supermarket cashiers stealing items from the supermarket. The cashiers were confronted about the theft and admitted to stealing the items.  They were then subsequently dismissed.

As a result of their dismissal they brought unfair dismissal claims through the Spanish courts claiming that the use of the recordings in unfair dismissal proceedings had infringed their privacy rights, as they were not aware they were being recorded. However they were not successful. They then pursued claims at the European Court of Human Rights arguing that the use of the covert video evidence in the unfair dismissal proceedings had infringed both their privacy rights and their right to a fair hearing.

The European Court of Human Rights agreed with the employees - that the use of covert cameras constituted a violation of the employees' right to privacy. The Court when coming to this decision balanced the employees' rights to respect for their private life and the employer's interest in protecting its property rights. It found that whilst the employer was concerned about thefts and was entitled to investigate, the use of covert recording in this way breached Spanish data protection law. In particular, the employer's rights could have been safeguarded by other means, for  example by informing the employees in advance of the installation of the hidden cameras and providing them with the information required by Spanish data protection law.

What does this mean for you or your business?

Whilst this is a Spanish case it is useful guidance for U.K. cases as it serves as a reminder that it will be rare for covert monitoring of employees to be justified and it should only be carried out in exceptional circumstances.  If covert monitoring is undertaken it should be done for the shortest possible period and affect as few individuals as possible for example in this case by targeting those cashiers under suspicion only. This is in line with the Information Commissioners Office (ICO)  guidance which can be found at HERE.

In summary, the ICO guidance states that "covert monitoring should not normally be considered. It will be rare for covert monitoring of workers to be justified.”

What do you need to be doing now?

Employers who use video surveillance/CCTV monitoring (or any other device such as a tracking device) should ensure that they have a policy that deals with what monitoring takes place, the reasons why it is being used and what will happen to the recordings once made. In light of the forthcoming requirements of the General Data Protection Regulation (GDPR) employers should be reviewing their privacy policies and conducting a data protection audit to ensure they are GDPR compliant.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.