Hidden Cameras in the Workplace Breach Employees' Privacy Rights

Posted on 16th January 2018

A couple of recent decisions of the European Court of Human Rights (ECHR) will be of interest to employers who are considering installing video cameras in the workplace. Both cases related to Article 8 (the right to privacy) of the European Convention on Human Rights.
   
In the first case (Antovic and Mircovik v Montenegro), a university installed surveillance cameras in a public lecture theatre for the purpose of protecting the safety and property of people and monitoring teaching. A finding of the domestic courts that there had been no violation of the right to privacy because the cameras were in public teaching areas was rejected by the ECHR on the basis that ‘private life’ had to be interpreted broadly and it could include professional activities taking place in a public forum.

In the second case (Lopez Ribalda and Others v Spain), the management of a Spanish supermarket noticed that there were significant stock discrepancies amounting, in some months, to a shortfall of as much as 20,000 euro. In the circumstances, hidden cameras were installed specifically for the purpose of recording any thefts by employees working as cashiers. As a result of the video footage five employees were dismissed. The Spanish Courts concluded that the covert surveillance was justified as it had a legitimate aim and was necessary and proportionate.

The ECHR disagreed with the national courts noting that the covert video surveillance was a considerable intrusion into the private life of the employees. In reaching its decision the ECHR had regard to the balance between the employees’ right to privacy and the employer’s interest in protecting its property. The balance appears to have been tipped in favour of the employees because the covert surveillance targeted all employees working as cashiers (rather than targeting particular individuals). Furthermore, the surveillance was not for a specific limited period of time, was conducted during all working hours and did not comply with national data protection laws. In the circumstances the ECHR upheld the employees’ Article 8 claims concluding that their right to privacy had been breached.

In the UK, guidance from the Information Commissioner’s Office states that covert monitoring of employees would only be justified in exceptional circumstances where openness could prejudice the prevention or detection of crime or equivalent malpractice. These decisions of the ECHR suggest that employers will also need to take a more targeted, time limited approach and ensure that less intrusive methods have been considered first.
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