Employment Law Update: Secret Video Surveillance of Employees

The Grand Chamber of the European Court of Human Rights (ECHR) held in the case of López Ribalda and Others v. Spain (applications nos. 1874/13 and 8567/13, 17.02.2019) that employees’ right to privacy was not violated when a Spanish supermarket used visible and secret cameras to record public areas of the store when it suspected significant theft by employees.

The applicants complained that the covert video-surveillance and the Spanish courts’ use of the data obtained to find that their dismissals was not fair. The applicants who signed settlement agreements also complained that the agreements had been made under duress owing to the video material and should not have been accepted as evidence that their dismissals had been fair.

A key argument made by the applicants was that they had not been given prior notification of the surveillance contrary to Article 8 (right to privacy). The Court acknowledged that it is “necessary to inform the individuals concerned, clearly and prior to implementation, of the existence and conditions of such data collection, even if only in a general manner.”

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, implying the economic interests of the supermarket (employer), could justify the lack of information.  he employers “reasonable suspicion of serious misconduct” combined with the “extent of the losses,” as well as the fact that there were multiple employees involved, were a “weighty justification” for not notifying employees of the surveillance.

The Court stated:

“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.”

The court consequently found that there had been no violation of Article 8 of the Convention. It found in particular that the Spanish courts had carefully balanced the rights of the applicants – supermarket employees suspected of theft – and those of the employer, and had carried out a thorough examination of the justification for the video-surveillance.

The Court also held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding in particular that the use of the video material as evidence had not undermined the fairness of the trial.

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