Five Spanish nationals were employed by M.S.A (a Spanish family-owned supermarket chain) as cashiers. Their shop supervisor noticed irregularities between stock levels and what was sold on a daily basis. In order to investigate, M.S.A installed both visible and hidden surveillance cameras. The surveillance revealed the employees helping co-workers and customers steal items and stealing items themselves.
Is the covert surveillance of employees lawful if they are suspected of wrongdoing?
Lopez Ribalda and others v Spain
Five Spanish nationals were employed by M.S.A (a Spanish family-owned supermarket chain) as cashiers. Their shop supervisor noticed irregularities between stock levels and what was sold on a daily basis. In order to investigate, M.S.A installed both visible and hidden surveillance cameras. M.S.A informed the employees of the visible cameras but not the hidden cameras. The surveillance revealed the employees helping co-workers and customers steal items and stealing items themselves. They were caught scanning items and cancelling the purchases afterwards or allowing customers and co-workers to leave store without paying for items.
All the workers suspected of theft were called into individual meetings where they admitted their theft in front of union and legal representatives. They were also asked to sign a settlement agreement that they would not bring unfair dismissal claims against M.S.A and subsequently M.S.A would not bring criminal charges against them. The employees were dismissed on disciplinary grounds.
Despite the settlement agreements, the employees brought claims for unfair dismissal. They argued that the surveillance from the hidden cameras had violated their right to privacy under Article 8 of the European Convention on Human Rights as they had not been informed of its existence. Subsequently, they argued that their dismissals were unfair as this surveillance had been used to justify disciplinary action. Furthermore, the employees complained that the settlement agreements were void because they had been signed under duress (a company representative had allegedly threatened to bring criminal proceedings against them if they did not sign). In relying on the agreement to justify fair dismissal it had violated their right to a fair trial.
The Spanish courts dismissed the employees’ claims and declared the dismissals fair. It set out that the use of covert surveillance in this case was a proportionate means of achieving a legitimate aim as the employer used surveillance measures which they deemed appropriate to verify that the employee was fulfilling their employment duties and retained their dignity. The employees conduct was a breach of contract. In relation to the validity of the settlement agreements, the tribunal found no evidence that they had been signed under duress and other employees in the same situation had refused to sign the agreement.
However, the European Court of Human Rights disagreed on appeal and found that the employee’s right to privacy under Article 8 had been violated. It set out that the concept of private life extends to a person’s image as this identifies them from their peers. Covert video surveillance should therefore be considered as a considerable intrusion into the subject’s private life. The visual data obtained by M.S.A in the surveillance was personal and was processed by several staff at M.S.A before the employees involved were informed of its existence. Consequently, the Court held that M.S.A did not comply with their obligation to inform data subjects of the existence and collection of their personal data. The Spanish court’s findings were dismissed as M.S.A’s surveillance of the employees was not a proportionate means of achieving a legitimate aim. It concluded that the Spanish courts had failed to strike a fair balance between the employee’s right to respect for their private life and M.S.A’s interest in the protection of its property rights. It also noted that the surveillance was not controlled or time limited and there were no notifications in the workplace on the use of CCTV generally.
The Court did agree with the Spanish court’s findings that the footage obtained from the camera’s did not conflict with the right to a fair trial and it did not find any evidence of any duress which the employees claim led them to signing the settlement agreements.
An employer’s right to use measures such as surveillance as a reason to bring disciplinary action has to be weighed against an employee’s fundamental right to privacy. In cases where wrongdoing such as theft is suspected it is possible that the interference can be justified as a proportionate means of achieving a legitimate aim. If employers need to covertly monitor employees they must have a genuine reason such as criminal activities or malpractice. Monitoring must be obtained as quickly as possible and only as part of a specific investigation and it must stop when the investigation has finished.
There are many instances that employers may need to monitor the workplace and/or employees (such as safeguarding). To avoid any breaches employers should remember to always have written policies and procedures in place that set out how and why monitoring methods may occur. Employers must also ensure that the monitoring is justified and that employees are told what information will be collected and how it will be securely stored. If methods such as CCTV are used then employees should be informed of this “explicitly, precisely and unambiguously”.
If you have any queries relating to monitoring, data protection or any other HR queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.