Covert surveillance of employees who are suspected of gross misconduct – is this a breach of Article 8?
Following our recent article, Can employees covertly record meetings within the workplace?, this discussion follows the legal position of employers who covertly monitor their employees.
The recent case of Lopez Ribalda and others v Spain  IRLR 60 (Ribalda v Spain) illustrates that covert surveillance of employees will not always breach their right to a private life under Article 8 as the Grand Chamber of the European Court voted 14-3 in favour of the decision.
In Ribalda v Spain a shop manager noticed significant amounts of cash and stock went missing every month. He set up CCTV in store and informed all employees that he had done so in order to prevent thieves and informed them where all of the CCTV cameras were. However, he did not inform them of the secret CCTV cameras he had set up to monitor his own employees. These covert CCTV cameras clearly caught multiple employees stealing cash and stock on a regular basis. All of the 14 employees who were caught were dismissed, but what made the actions of the employer lawful in this case?
The Grand Chamber stated the following reasons as to why the covert surveillance was lawful:
“first, it was justified by reasonable suspicions of serious misconduct; that, secondly, it was appropriate to the aim pursued, namely to verify whether the employee was actually committing misconduct and to adopt sanctions if necessary; that, thirdly, it was necessary, because the recordings would provide evidence of the misconduct in question; and that, fourthly, it was proportionate, because the monitoring was limited in space and in time to what was sufficient to fulfil its aim.”
Ribalda v Spain referred to the following criteria to assess whether the use of covert surveillance was lawful:
- 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;
- the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy – the level of privacy in the area being monitored should be taken into account;
- 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;
- whether it would have been possible to set up a monitoring system based on less intrusive methods and measures – could a less intrusive approach have been used to reach the same outcome;
- the consequences of the monitoring for the employee subjected to it; and
- whether the employee has been provided with appropriate safeguards, especially where the employer’s monitoring operations are of an intrusive nature – employees will need to be given a GDPR privacy notice to sign stipulating they are aware that CCTV is use within the workplace.
This case serves as a useful guide to use before attempting to implement such measures within the work environment but you are encouraged to get legal advice prior to this to fully understand your legal obligations in order to prevent any damaging ramifications for your business.
GA Solicitors has a dedicated employment department who can provide advice and assistance. If you would like to discuss any of the issues raised in this article and/or require assistance in updating any GDPR compliant privacy notices please do not hesitate to contact Rob Zacal on 01752 513549 or firstname.lastname@example.org