Employees enjoy some rights to privacy even when they are at work. If you want to monitor what they are doing, you must inform them beforehand and take a proportional approach. Besides this, if your monitoring generates information relating to identifiable individuals, you are obliged to comply with the General Data Protection Regulation (GDPR).

There are a number of reasons why you may wish to track your employees. For example, if you suspect that your staff are stealing. Can you install covert cameras to catch them in the act?

That was the situation one employer found himself in the case of López Ribalda and others v Spain.

Facts

Ms Ribalda was working as a cashier in a Spanish supermarket. The manager noticed discrepancies in stock levels and sales figures resulted in losses of over €82,000 in five-month period. The employer started an internal investigation and installed CCTV cameras. Some of these were hidden and others were visible. The staff were informed about the visible cameras and the reasons they had been installed, but not about the hidden cameras. Footage taken over a four-day period revealed Ms Ribadla and other staff stealing goods and helping customers to steal. The employer dismissed the staff involved.

Ms Ribadla pursued her unfair dismissal case through the Spanish courts arguing that covertly videoing her breached her right to privacy under article 8 of European Convention of Human Rights (ECHR) and could not be used to justify her dismissal. Her defence of “how dare you film us stealing from you” cut no ice in the Spanish courts.

She appealed to the ECHR, who agreed that the use of covert cameras constituted a violation of the employees’ right to privacy. The Spanish government appealed, and the matter came before the ‘Grand Chamber’ of the European Court of Human Rights (ECHR).

Decision

The Grand Chamber held that the employer’s use of covert surveillance was justified and proportionate here because of the following factors:

  • The scale of theft and number of employees involved in it was considerable;
  • Surveillance only took place for a short period of time;
  • The covert cameras were installed in a public area of the supermarket where there was a low expectation of privacy;
  • Only a few people viewed and had access to the footage;
  • The footage was only used to monitor theft and it was not appropriate to inform the staff beforehand and there were no less intrusive ways of catching the thieves.

Our Tips for Employers Employers will be pleased with this result as it gives better cover when covert surveillance is the only option. However, you should never install covert cameras without taking advice as the law around this is very tricky. As you will be expected to conduct impact assessment by the Information and Data Protection Commissioner (IDPC).