Is It Legal to Monitor Your Employees By Covert Surveillance?

In a recent case, it was held that the covert surveillance of employees by their employer, who set up CCTV cameras to monitor suspected thefts, was an infringement of those employee's rights to privacy.

Employers looking to monitor the conduct of their employees - particularly those using covert recording - should consider their actions carefully, particularly in light of the requirements of the General Data Protection Regulation (GDPR), which becomes law on 25 May 2018.

López Ribalda and others v Spain

In this case a Spanish supermarket decided to install surveillance cameras after it uncovered theft at one of its stores. A number of visible surveillance cameras were installed, aimed at detecting theft by customers, as well as hidden video recorders to monitor supermarket cashiers. The footage collected showed five employees stealing items from the supermarket. The employees were confronted and admitted to theft, after which they were dismissed. The employees pursued unfair dismissal claims through the Spanish courts, which were unsuccessful. The employees subsequently pursued claims at the European Court of Human Rights (ECtHR) arguing that the use of the covert video evidence in the unfair dismissal proceedings had infringed both their privacy rights under Article 8(1), and their right to a fair hearing under Article 6(1) of the European Convention on Human Rights.

The Decision

The ECtHR agreed that the use of covert cameras constituted a violation of the employees' right to privacy. The ECtHR looked at whether the Spanish courts had properly balanced the employees' rights to respect for their private life and the employer's interest in protecting its property rights, and the public interest in administration of justice. The ECtHR determined 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 and the guidance issued by the Spanish data protection agency. In this case, not enough had been done to safeguard the employees' rights - for instance by targeting the surveillance only to those individuals who were under suspicion, or only recording for limited periods of time. The ECtHR also noted that other safeguards might have included informing the employees of the recording and providing them with the information required under Spanish law. The Article 6 claim for a right to a fair hearing was rejected by the ECtHR, on the basis that there was evidence other than the video footage relied upon when the Spanish courts decided to uphold the dismissals.

How Does This Apply in the UK?

This decision is applicable within the UK and directly relates to the Information Commissioner's Office (ICO) guidance for UK employers on covert monitoring. In the UK, the ICO guidance states that "covert monitoring should not normally be considered. It will be rare for covert monitoring of workers to be justified. It should therefore only be used in exceptional circumstances." An example of an exceptional circumstances includes:

• a specific investigation into suspected criminal activity, where openness would be likely to prejudice the prevention or detection of crime or equivalent malpractice
• the apprehension or prosecution of offenders

In order to make an assessment if prejudice is likely, employers must conduct a detailed investigation and obtain senior management approval. In addition, under the GDPR, employers must conduct data protection impact assessments when undertaking processes that are likely to result in a high risk to the rights of data subjects. Covert monitoring will fall within the scope of this obligation therefore employers are placed under an additional obligation when considering covert surveillance. Finally, employers who use video surveillance should ensure that they have a policy in place setting out:

• what CCTV monitoring takes place
• the reasons why it has been deployed
• how the recordings are used

In addition, if the decision is taken to use covert monitoring, this should be targeted to affect as few individuals as possible and undertaken for the shortest possible period necessary. For more information, please contact Mark Stevens in our Employment Law team, on 0117 314 5401.