February 28, 2018

Covert Surveillance at Work: A Breach of the Right to Privacy

In Lopez Ribalda & Ors v Spain (Application nos. 1874/13 and 8567/13) the European Court of Human Rights (ECtHR) held that the installation of and reliance on covert surveillance at work was a breach of the workers’ right to privacy under the European Convention on Human Rights.

After a number of suspected thefts by cashiers, a Spanish supermarket chain installed covert surveillance cameras to monitor its employees. The employees were not informed that the covert cameras were in place. Five employees were caught on camera stealing and helping co-workers and customers to steal. As a result, the employees were dismissed and brought claims for unfair dismissal. The Spanish courts dismissed their claims and found that the use of the covert surveillance had been justified.

The employees subsequently brought proceedings before the ECtHR claiming that the use during the unfair dismissal litigation of evidence gathered through covert video surveillance breached their right to privacy under the European Convention on Human Rights. The ECtHR agreed that their right to privacy had been breached. A fair balance had not been struck by the Spanish courts between the employees’ right to privacy and the employer’s interest in its personal property. Under Spanish data protection laws the employees should have been informed of the covert surveillance and the ECtHR found that the employees’ right to privacy could have been safeguarded had the employer done so.

This case highlights the risks for employers of covert surveillance, which will increase under the new General Data Protection Regulation which comes into force on 25 May 2018. Employers should review their monitoring practices and policies accordingly.

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