CCTV in the workplace

Employment Law

In the case of Lopez Ribalda and Others v Spain, the European Court of Human Rights (ECHR) have considered whether an employer’s decision to install hidden CCTV cameras in the workplace with a view to monitoring suspected employee theft violated the employees’ privacy rights, under Article 8 and subsequently Article 6 of the European Convention on Human Rights.

The case surrounds the dismissal of 5 employees who were employed as cashiers at MSA a supermarket Chain in Spain. The Manager was aware of differences in stock levels sometimes up to as much as €20,000. The Manager decided to install surveillance as part of his investigations. Some cameras aimed at customer theft were visible but cameras aimed at staff theft were hidden. The staff were not informed about the hidden cameras.

Five members of staff were caught stealing and assisting co-worker and customers in acts of theft. They all admitted their involvement and were dismissed. Three of the employees signed Settlement Agreements which meant that in consideration for MSA not involving the police, the employees would not pursue any unfair dismissal claims. All five employees did however pursue claims and challenged the use of the hidden camera footage and the validity of the Settlement Agreements suggesting they were forced to sign them.

The Spanish Employment Tribunals and High Court of Catalonia accepted that the hidden video footage had been lawfully obtained and was a proportionate means of achieving a legitimate aim.

The employees pursued the matter to the ECHR claiming the hidden cameras amounted to a breach of Article 8 – privacy – and the use of it at trial was a breach of Article 6 – a right to a fair hearing.

The ECHR found in favour of the employees in their Article 8 claim but rejected their Article 6 claim given that the surveillance was not the only piece of evidence relied upon.

As with UK law, there is strict guidance on the use of an individual’s personal data and Spanish law goes further and expressly states that “everyone who uses video surveillance systems must fulfil all the obligations prescribed in section 5 of the Personal Data Protection Act. For that purpose they must… a) Place a distinctive sign indicating the areas that are under surveillance and b) have documents available containing the information provided in section 5 of the Personal Protection Act”. The Court found that the employer had breached the employee’s rights in this regard and could have safeguarded their position by other means.

Taking account of this case and the General Data Protection Regulations, employers are advised to review their use of surveillance. The use of surveillance is in itself an intrusion and employers should ensure that the use of surveillance is only put in place when absolutely necessary.  Where it is in place, compliance with GDPR is of paramount importance. GDPR provides for Data Protection Impact Assessments to be carried out and this should assist in identifying and establishing the necessity for any such surveillance.

It should be noted that video and audio monitoring is only likely to be justifiable in the rarest of circumstances. You should only record one or the other and again, with either surveillance, the areas of surveillance need to be carefully considered so as to avoid breaches in privacy.

 Should you require further advice and assistance in connection with compliance of GDPR and/or in the drafting of a workplace monitoring policy please do not hesitate to contact us.