Clarity on CCTV monitoring of employees

It has been received as the right decision by commentators and will be reassuring for employers who monitor employees with CCTV. But does this ruling mark a shift in the way we approach workplace privacy? And how carefully should employers tread when monitoring employees?

Caught in the act

The case in question began as an unfair dismissal claim, after five employees were removed from their roles at a Spanish supermarket for theft. Between March and June 2009 inconsistencies between stock and sales figures, totalling approximately €82,000, were discovered. June was the month when this peaked, with a loss of almost €25,000.

In order to find out what was causing the discrepancy, the employer installed CCTV cameras in June of 2009. Some of these were visible and pointed at the entrances. However, there were also further hidden cameras installed, which pointed directly at the tills. Employees were informed CCTV had been installed, but not the extent to which it had.

When these cameras picked up evidence of theft by employees on the 25^th of June 2009, the union representative was informed, and 14 members of staff were dismissed. Of this group, five raised claims for unfair dismissal against their former employer.

The claims were dismissed at both Tribunal and High Court level. Both found in favour of the employer, despite Spanish Data Protection Law stating that individuals should be informed if they are being recorded. The cases were appealed to the Constitutional Court of Spain, but were also dismissed there. 

Finally, the employees in question brought claims against Spain in the European Court of Human Rights. They argued that the use of covert video surveillance was a breach of their right to privacy, under Article 8 of the European Convention on Human Rights.

Decision of the European Court of Human Rights

In early 2018, the Chamber of the European Court of Human Rights found the Spanish Courts had violated the employees’ Article 8 rights. It said the use of CCTV footage had been too broad, and insufficiently targeted, as it had been based on a general suspicion of all staff because of the stock irregularities.

However, the GC overturned that decision. It found that the supermarket’s actions were necessary and proportionate and there had been no violation of the employees’ right to privacy.

The GC also noted the following factors, which can serve as guidelines for employers that are thinking about monitoring employees.

• The employee should be informed of any monitoring measures that are being implemented.
• The extent of the monitoring and the degree of intrusion into the employee’s privacy should be assessed. The level of privacy in the area subject to surveillance should be taken into account, as well as any limitations on time, space and the number of people who have access to the results.
• Whether the employer has provided a legitimate reason/s to justify any monitoring. The more intrusive any surveillance, the greater the justification needed.
• Whether the employer’s legitimate aim could have been achieved through less intrusive monitoring.
• Whether the employer has implemented sufficient safeguards for employees, where the surveillance may be intrusive.

In this case, the GC stated it did not consider the Spanish Court’s approach unreasonable based on the above factors. The Spanish Courts had found the supermarket’s use of CCTV was:

• limited to a set area;
• in place for a limited period of time; and
• the employees had been informed that CCTV was being installed.

The fact the employees were not informed of the extent of the CCTV use was a contentious issue, but not one which ultimately swayed the GC.

What can we learn from this?

The effect of this decision for employers is that any covert monitoring should be carried out with a legitimate aim and in accordance with the guidelines outlined above. In the UK, the Information Commissioner’s Office (ICO) offers further guidance in its Employment Practices Code. This states that it considers it unusual for covert monitoring to be justified and it should only be undertaken in exceptional circumstances. Therefore, while this decision is reassuring for employers, it is important to tread carefully when considering any covert surveillance, and follow the guidance in the Code.

Finally, it’s important to remember the UK’s treaty obligations under the European Convention on Human Rights are entirely separate from our obligations under our membership of the European Union. As such, this decision remains applicable, regardless of the UK’s withdrawal from the European Union.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.