European Union: European Court of Human Rights allows for the Secret Video Surveillance of Employees

In a recent landmark case of 17 October 2019 (no. 1874/13 and 8567/13 López Ribalda vs. Spain), the Grand Chamber of the European Court of Human Rights has ruled that the use of hidden video cameras by a Spanish Supermarket, which led to the dismissal of several employees for stealing, was not a restriction of the right to privacy of the employees.

The case concerns a number of employees, including cashiers and shop assistants. The manager of the supermarket noted that there was a big difference between stock data and sales figures, raising the suspicion of thefts. A camera surveillance system was installed and the employees were informed about this, however, without notifying them about several hidden cameras. After the Spanish data authority had pointed out the information requirements, the employer hung-up a notification advising that camera surveillance was in use within the supermarket, without indicating the location of the (hidden) cameras.

After capturing the theft on video, 14 workers were dismissed for theft, after these facts had been established by the camera control. Five employees went to court. They did not obtain a right in the Spanish courts and brought the case before the European Court of Human Rights.

In its judgment, the Grand Chamber examined whether the Spanish courts had rendered their judgment in accordance with Article 8 ECHR (the right to privacy). According to the Court, this appears to be the case. For example, the camera surveillance was justified because of a suspicion of theft. The Court also established that the hidden camera control was limited to the checkout space, the most sensitive place for committing the suspected thefts. Also, the duration of the inspection was not considered excessive and did not go beyond what was necessary to confirm the suspicion of theft. According to the Court, such considerations are not contrary to the right to privacy. The camera surveillance lasted ten days and ceased when sufficient evidence was available and the perpetrators were identified.

Next, the Court took the reasonable privacy expectations of the employees into consideration. As the cameras were functioning permanently, the employees were not able to escape the camera surveillance, but the employees were expected to do their work in a place open to the public and where there was constant contact with customers. This was not a private space (e.g. toilets, cloakrooms) with a high privacy expectation. Such privacy expectations could also be an obstacle in a closed workshop, such as an office. Even then however, these privacy expectations can be lowered if such place is visible or accessible to colleagues or the wider public.

Finally, the Court stated that notifying the employees of the camera surveillance is a fundamental obligation, especially in an employment relationship where abuses of power must be avoided. Nevertheless, the Court determined that the information obligation is only one of the criteria to assess a violation of the right to privacy. Therefore, a higher public or private interest, also implying the economic interests of the supermarket (employer), could justify the lack of information. In the words of the Court: “Thus, while it cannot accept the proposition that, generally speaking, the slightest suspicion of misappropriation or any other wrongdoing on the part of employees might justify the installation of covert video-surveillance by the employer, the existence of reasonable suspicion that serious misconduct has been committed and the extent of the losses identified in the present case may appear to constitute weighty justification. This is all the more so in a situation where the smooth functioning of a company is endangered not merely by the suspected misbehaviour of one single employee, but rather by the suspicion of concerted action by several employees, as this creates a general atmosphere of mistrust in the workplace.”

As a consequence, the Court did not find any violation of the right to privacy.

For more information on these articles or any other issues involving labour and employment matters in European Union, please contact Chris Van Olmen, Partner at Van Olmen & Wynant (www.vow.be) at chris.van.olmen@vow.be.