Last year we reported on the case of Barbulescu v Romania which, following a rare appeal to the Grand Chamber of the European Court of Human Rights ("ECtHR"), held that Mr Barbulescu's Article 8 right to respect for private and family had been breached when his employer had monitored his emails at work without first explaining the full extent of that monitoring.
In the case of Lopez Ribalda and Others & Spain, the issue of breach of Article 8 has come before the ECHR again, this time in the context of covert surveillance in the workplace. When a Spanish supermarket installed surveillance cameras they only told their workers about the visible ones. They subsequently dismissed a number of employees for theft relying on images caught on covert cameras that the staff were not aware of. Despite many of the dismissed employees having admitted their involvement in the thefts they subsequently raised claims alleging breach of Article 8 and data protection laws.
When the matter came before the domestic courts in Spain it was held that the use of the covert cameras was a justified, appropriate, necessary and proportionate method of combatting the theft, and that there was no other less intrusive means of protecting the employer's rights than the cameras. However, the ECtHR disagreed. They held that video surveillance in the workplace is a considerable intrusion into private life and that "personal data" under data protection legislation extended to personal appearance.
Once again the Court confirmed that employers have to strike a fair balance between employees' rights to private and family life and an employer's interest in protecting its business and property. In this case the Court held that the supermarket had failed to find this balance. Of relevance to the Court's decision was the fact that the surveillance filmed all staff who worked at the supermarket's cash registers over a period of several weeks without any time limit and during all working hours.
As with the Barbulescu case, this case is another example of how important it is for employers to ensure that employees are aware of the nature and extent of monitoring that is taking place in the workplace. While there may be occasions where surveillance of this nature is found to be justified, appropriate, necessary and proportionate it is undoubtedly a difficult test for an employer to meet.
In the UK, the Information Commissioner's Office has stated in its Employment practices data protection code that covert monitoring should only be done in exceptional circumstances. The ICO goes on to give the example of covert monitoring as part of a specific investigation which ceases once the investigation has been completed.