CCTV Surveillance at Work
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private … life …
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
There have been a number of workplace surveillance cases before the ECJ which have addressed the conflicting privacy interests of a worker with the commercial interests of an employer.
The recent case of LÓPEZ RIBALDA AND OTHERS v. SPAIN is helpful as it reaffirms the ECJs previous approach to such matters and how those factors might be weighed up by a domestic court where an Article 8 point has arisen in respect of workplace surveillance.
What was it about?
The case involved cashiers and other workers employed in a supermarket. There were within the public areas of the store a number of CCTV cameras which the workers knew were being used to monitor the store. The workers knew that one of the reasons for this was to monitor, prevent and prosecute individuals who might steal from the store. However unbeknown to the workers a separate CCTV system had been set up without the knowledge of the workers which was being used to covertly observe the check-out area and in particular the tills. Over a period of 10 days the CCTV monitoring evidenced theft by the workers. Subsequently these workers were dismissed and appealed through the Spanish Courts. The matter eventually ended up in front of the ECJ Grand Chamber.
The key issue in the case was whether the covert surveillance of employees in a public area of the supermarket and the subsequent use of that footage at a disciplinary hearing which led to their eventual dismissals was a breach of their Article 8 Convention rights. The applicants cases were straightforward they alleged that the fact they had been continuously filmed in their workplace throughout their entire working day, without their knowledge and without being able to evade the monitoring, resulted in Article 8 of the Convention being applicable.
What did the ECJ say?
First off the Judges took a journey through the case law including Bărbulescu v. Romania  ECHR 754 & Köpke v. Germany  ECHR 1725. The balance for domestic courts to strike is to ensure that the introduction by an employer of monitoring measures affecting the right to respect for private life or correspondence of its employees is proportionate and is accompanied by adequate and sufficient safeguards against abuse. They listed the following factors as being relevant:
(i) Whether the employee has been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation of such measures. While in practice employees may be notified in various ways, depending on the particular factual circumstances of each case, the notification should normally be clear about the nature of the monitoring and be given prior to implementation.
(ii) The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. In this connection, the level of privacy in the area being monitored should be taken into account, together with any limitations in time and space and the number of people who have access to the results.
(iii) Whether the employer has provided legitimate reasons to justify monitoring and the extent thereof. The more intrusive the monitoring, the weightier the justification that will be required.
(iv) Whether it would have been possible to set up a monitoring system based on less intrusive methods and measures. In this connection, there should be an assessment in the light of the particular circumstances of each case as to whether the aim pursued by the employer could have been achieved through a lesser degree of interference with the employee’s privacy.
(v) The consequences of the monitoring for the employee subjected to it. Account should be taken, in particular, of the use made by the employer of the results of the monitoring and whether such results have been used to achieve the stated aim of the measure.
(vi) Whether the employee has been provided with appropriate safeguards, especially where the employer’s monitoring operations are of an intrusive nature. Such safeguards may take the form, among others, of the provision of information to the employees concerned or the staff representatives as to the installation and extent of the monitoring, a declaration of such a measure to an independent body or the possibility of making a complaint.
The ECJ noted that the courts below had identified the various interests at stake, having expressly referred to the applicants’ right to respect for their private life and the balance to be struck between that right and the employer’s interest in ensuring the smooth running of the company by exercising its management powers.
Central to the Judges thinking in this case was that the risk of theft was not slight. There existed a reasonable suspicion that serious misconduct had been committed and the extent of the losses identified constituted weighty justification. In addition the case did not involve the suspected misconduct of one single worker, but rather the suspicion of an organised group of workers which was likely to cause a general atmosphere of mistrust in the workplace.
The Judges pointed out that in the present case:
- although the surveillance was covert it took place in the public areas of the store where there could less expectation of privacy (as opposed to a cloak room or locker area);
- it was targeted in one area of the store where the thefts were taking place;
- the length of time over which the surveillance took place was not excessive;
- the footage had been seen by a small number of employees;
- the footage had only been used for that purpose.
These factors outweighed the fact that the surveillance was undertaken without the knowledge of the workers, the footage was not provided to the workers and was not of a certain duration.
The Judges concluded that although the use of the covert surveillance had resulted in the workers being dismissed in the circumstances the correct balance had been struck.
What can we take away?
It should not be thought that this case in any way gives the green light to employers to covertly surveil their employees. Far from it, it is clear that very careful consideration needs to be given to undertaking covert surveillance of employees in the workplace. It is to be noted that the store had already pinpointed that it was likely that thefts were occurring at the till point, the thefts were substantial and were being carried out by a group of employees. In the circumstances to have made the workers aware of the surveillance would have made it very difficult to have properly investigated the thefts and to protect its business interests.