Does anyone remember the TV programme ‘Game for A Laugh?’ More particularly, do you remember the phrase that each episode ended with? It was of course ‘We’ll be watching you, watching us, watching you!’
In case you think that’s not a phrase you’ll ever say in business, then have you ever thought about installing hidden cameras in your workplace to monitor your employees’ activities? If you have, then can you?
Employers should only install surveillance cameras if they are prepared to let their employees know they are there
I am occasionally asked by employers if they can install hidden cameras onto their premises when they suspect that their employee is guilty of some form of gross misconduct, whether that be theft of company property or taking drugs or drinking while at work. My advice to employers in those scenarios is always that they should only think about installing surveillance cameras if they are prepared to let their employees know that they are there, or there is something contained within their company policies which allows them to monitor employees in this way.
This is because your employees have a right to privacy and that is enshrined in the European Convention of Human Rights.
This view has been reinforced by a recent Spanish case involving Spanish supermarket workers. In the case of Lopez Ribalda and others, the European Court of Human Rights considered whether an employer’s decision to install hidden cameras to monitor suspected workplace theft by a number of supermarket cashiers violated the cashiers’ right to privacy under Article 8 of the European Convention.
The facts of the case were as follows:
Ms Lopez Ribalda and four colleagues worked as cashiers at a supermarket chain. The manager of the supermarket became aware of significant discrepancies between the stock levels and what was allegedly being sold in the store. That discrepancy, in some months, could amount to as much as €20,000. The supermarket chain installed surveillance cameras in the supermarket. The cameras were aimed at determining if there was possible customer theft and those cameras were visible to all of the employees. However, the cameras which were aimed at recording possible employee thefts were hidden. These cameras filmed the area behind the cash desks. The supermarket did not tell its employees of its staff that the concealed cameras were in place.
Ms Lopez Ribalda and her colleagues were subsequently caught on video stealing items and helping co-workers and customers to steal items. The footage showed them scanning items from customers’ baskets and then cancelling the purchases. The five employees admitted their involvement in the thefts and were dismissed.
Three of the employees agreed not to challenge their dismissal. The supermarket agreed not to initiate criminal proceedings against them. All five employees raised unfair dismissal claims.
The dismissals were deemed fair by the Spanish Employment Tribunal and on appeal to the High Court of Catalonia. The domestic court took the view that the covert video surveillance had been lawfully obtained although the employees had not been given any notice of this. The High Court said that the surveillance was justified as there had been a reasonable suspicion of theft and the installation of the cameras was appropriate to being pursued and it was necessary and proportionate.
The employees argued before the European Court of Human Rights argued that their right to privacy under Article 8 had been breached. They also tried to claim under Article 6 of the Convention that the use of the footage in their unfair dismissal proceedings had infringed their rights that everyone is entitled to a fair hearing.
The European Court on Human Rights upheld the claim under Article 8 that their right to privacy had been violated. It was not prepared to uphold their right under Article 6.
In upholding the claim under article 8, the Court took the view that the “covert video surveillance of an employee in their workplace must be considered a considerable intrusion into their private life, since an employee is contractually obliged to report for work at their workplace, and cannot avoid being filmed.”
The Court had to reach a decision based on the one hand the fact that the covert surveillance was being carried out against the background of an arguable suspicion of theft which did warrant investigation. However, on the other hand, the use of covert surveillance contravened Spanish data protection laws and the supermarket had not informed the employees that the surveillance cameras had been installed to focussing on the cash desks or of their rights under data protection legislation.
The court did consider previous cases where covert video surveillance was found not to have infringed employees’ rights. However, the difference between those case and the case before it was that only the particular employees under suspicion in those cases were targeted by the measure and that it had been carried out over a limited period. The decision to install the cameras by the supermarket management was based on a general suspicion against all staff and not specific individuals.
Interestingly, the court said that the employees’ rights could have been safeguarded by other means and those other means were that they could have informed the employees in advance of the installation of the video surveillance system and provided them with the information prescribed by the data protection legislation.
What should you do if you want to install surveillance cameras?
So, what do you need to think about the next time you want to install surveillance cameras to watch what your employees are doing?
Under UK law, guidance by the Information Commissioner’s Officers states that it will be unusual for the covert monitoring of employees to be justified and it should only be done in exceptional circumstances. Further guidance also suggests that it will only be justified in a particular case if openness would prejudice the prevention or detection of a crime. Therefore as an employer, you have to make a considered and realistic assessment of whether or not there is likely to be such a prejudice.
Theft from your business is no laughing matter. If you think surveillance is necessary, then to avoid you being the one being “laughed at”, you should have a policy that covert video surveillance will only be carried out in exceptional circumstances where the employer reasonably believes that there is a no less intrusive way of tackling a particular problem. If such monitoring takes place, then it should be done for as short a period of time as possible and should affect as few individuals as possible.
If you have any questions about introducing such a policy or any other questions involving employment law, then please contact me at jks@businesslaw.co.uk
