28th February 2018
Currently the law around privacy in the workplace is as follows:
Article 8(1) of the European Convention on Human Rights (ECHR) states that “everyone has a right to respect for his private and family life, his home and his correspondence”.
Article 8(2) provides that a public authority shall not interfere with the exercise of the right to privacy “except such as in accordance with the law and is necessary in a democratic society” in the interests of national security; public safety or the economic wellbeing of the Country; for the prevention of disorder or crime; for the protection of health or morals or for the protection of the rights freedoms of others.
In the UK, the Data Protection Act 1998 is being replaced on 25 May 2018 when the EU General Data Protection Regulation (GDPR) takes effect.
Two recent European Court of Human Rights (ECtHR) cases
Keeping a university auditorium private
In Antovic and Mirkovic v Montenegro [Application number 70 838/13]  ECHR 1068 (28 November 2017) the ECtHR held by a majority that the employees’ Article 8 Rights to privacy were infringed when the University of Montenegro installed surveillance cameras in student auditoriums with a view to “protecting the safety of property and people, and monitoring teaching”.
The ECtHR rejected the domestic Court's finding that there had been no violation of Article 8 (the right to respect of family and private life) because the video cameras only captured public teaching areas. The ECtHR referred to the case of Barbulescu v Romania  ECHR 742, in which it was previously found that private life must be interpreted broadly to include the right to live a private social life. It therefore concluded that professional activities taking place in a public context must also be included in this. The ECtHR considered that in the auditoriums, the lecturers not only taught but also interacted with students and were able to construct a social identity. Therefore, auditoriums would need to be treated like any other workplace. There was no reason for the ECtHR to leave from its previous findings that workplace surveillance (whether covert or not) amounts to a considerable intrusion into the employees’ private lives.
There was also no evidence that people or property had been at risk, which was the reason given for the surveillance, and monitoring teaching was not a permissible reason for surveillance under the domestic legislation of Montenegro.
Upholding an employer’s rights under Article 8
In Lopez Ribalda and Others v Spain [Application numbers 1874/13 and 8567/13] a Spanish supermarket found significant discrepancies of as much as €20,000 per month between stock levels and sales.
To combat these stock discrepancies, the supermarket installed visible surveillance cameras to catch possible customer thefts, and covert cameras behind the cash desks to check for potential employee thefts.
Shortly after the cameras were installed, Ms Lopez Ribalda and four of her colleagues were caught on video stealing items and helping co-workers and customers to steal items. Faced with the CCTV footage, the five employees admitted involvement in the thefts and were dismissed.
Three of the employees were offered Settlement Agreements in which they agreed not to challenge their dismissals on the basis that the supermarket would agree not to institute criminal proceedings. Nonetheless, all five employees issued unfair dismissal claims, which upon appeal was heard at the High Court in Catalonia.
The High Court found that the surveillance had been justified, since there was a reasonable suspicion of theft and therefore it was an appropriate and legitimate aim to try and counter these thefts. They considered that this CCTV was necessary and proportionate. The Settlement Agreement signatories’ argument that they were signed under duress in order to avoid criminal prosecutions was rejected as they freely and voluntarily entered into these to avoid criminal prosecutions for thefts they had admitted to.
The employees brought claims against Spain before the ECtHR, arguing that the covert recording had infringed their right to privacy under Article 8, which was upheld by a majority, and the use of unlawful footage had infringed their rights under Article 6 (the right to a fair hearing), which was unanimously rejected by the ECtHR.
With regards to the Article 8 claim, the ECtHR observed that the covert video surveillance amounted to a considerable intrusion into private life, as they were contractually obliged to report for work and could not avoid being filmed.
The ECtHR then had to examine whether the State had struck a fair balance between the employees’ right to private life and the employer’s interest to protect its property rights, and the public interest in the proper administration of justice.
Weighing up the competing factors, the ECtHR said that the suspicion of theft warranted an investigation. However, covert surveillance breached specific provisions of Spanish data protection law and guidance issued by the Spanish Data Protection Agency. In particular, the supermarket had not informed the employees that the surveillance cameras had been installed focusing on the cash desks.
The ECtHR contrasted this with the situation in Köpke v Germany, in which covert surveillance had been used in a similar manner in a supermarket. In those circumstances the surveillance had been found not to infringe the individuals’ privacy rights. Only those employees who were under suspicion of theft were targeted by the surveillance, it was for a limited period of only 2 weeks and it only covered the area surrounding the cash desk. In contrast, in the current case, the surveillance was not targeted at particular individuals, it focused on all staff working on the supermarket's cash register, it was for a period of weeks without any time limit and was operational during all working hours. The ECtHR therefore concluded that the employees’ rights could have been safeguarded by other, less intrusive, means which may have included informing the employees in advance of the installation of the surveillance system and providing them with the information prescribed by the data protection legislation in Spain.
In response to the Article 6 claim, the ECtHR confirmed that the right to a fair trial does not lay down the rules on whether evidence can be admitted. The issue was therefore not whether the video evidence should have been admitted as evidence, but whether the proceedings were found to be fair overall.
The video footage was not the only evidence that had been relied upon. There were also witness statements and the admissions of theft.
The ECtHR noted that the domestic courts did not find any evidence of duress with regard to the settlement agreement signatories. This was because the employer’s behaviour could not be classed as a threat; they would have been exercising their legitimate right to institute criminal proceedings against the employees for thefts they had admitted.
Therefore, the ECtHR found that there was no Article 6 violation for any of the employees, including the Settlement Agreement signatories.
What these cases reveal
The subtle differences between the employer’s actions in the Spanish case of Lopez Ribalda and the previous German case of Köpke help to show where the line is drawn between protecting the employer’s interests and respecting employees’ private lives. Therefore, where there is a more targeted and time-limited approach, it may be easier to justify the intrusion into employees’ privacy than where a broader approach is taken to the protection of the employer’s interests.
Guidance from the Information Commissioners Office
The Information Commissioners Office in the UK has issued guidance on these rules, which states that it would be rare for covert monitoring of employees to be justified, and that it should only be done in exceptional circumstances. For example, where there is an investigation into specific suspected criminal activity. Additional guidance shows that covert recording will only be justified in a particular case if openness would be likely to prejudice the prevention or detection of crime, or equivalent malpractice, or the apprehension or prosecution of offenders. It is therefore essential that employers make a considered and realistic assessment of whether such prejudice is likely, and it would be wise to keep an appropriate paper trail of having properly considered this issue.
The guidance also states that the implications of covert monitoring are such that only senior management should be able to authorise it . Therefore, it is advisable that employers maintain a strict policy that video surveillance will only be used in highly exceptional circumstances where there is a reasonable belief that there is no less intrusive way of tackling the issue. It should be used for the shortest possible period and affect as few individuals as possible.
If you would like to know more about the use of surveillance cameras in the workplace, you can refer to the ICO Surveillance Camera Code, which outlines many guiding principles.
If you have any queries about the use of video surveillance or the impact that GDPR may have on these regulations, please contact the Employment Team at Thrings or Graeme Fearon.