Welcome back and a Happy New Year to all our readers.

This year’s first case of the week asks the question:

Will an employer who covertly records its employees using CCTV be in breach of those employees’ human rights or their rights under the Data Protection Act?

The Human Rights Act 1998 enshrines into UK Law freedoms guaranteed under the European Convention on Human Rights. Article 8 enshrines the right to respect for private and human family life. The Government have not signalled any intention to remove the Human Rights Act or the Data Protection Act from UK law after the UK leaves the EU.

An Employment Tribunal (or any other court) can take into account any alleged infringement of human rights in determining any claim.

It would be fair to say that in the UK Employment Tribunals have been slow in finding that employers have breached their employees’ human rights.

In the Spanish case Lopez Ribalda and others v Spain, the issue of whether covert CCTV surveillance of employees breached their Article 8 rights to a private life.

The applicants in the case were all supermarket workers. The supermarket manager had noticed a shortfall between takings and stock levels of between eight thousand euros a month and twenty four thousand euros a month over the course of four months.

The supermarket manager installed visible cameras at the entrance and exit of the supermarket and informed the staff of the installation. The supermarket manager also installed covert CCTV covering the tills.

The supermarket informed the Spanish Data Protection Agency of the fact of installation and was advised to put up signs saying that CCTV had been installed.

Within a month of installation, 14 employees were caught on CCTV taking money meant for the till and were dismissed.  5 employees brought claims in the Spanish Employment Tribunal. Their argument was that installing CCTV and relying on that evidence breached their Article 8 right to a private life. They argued that the CCTV evidence should not be admitted as it had been obtained in breach of their human rights and further the personal data collected on the CCTV was their data and they had not consented to that data being processed.

The Employment Tribunal found the dismissals to be fair, not in breach of any human right and further found that the data gathered by the CCTV did not require the employees’ specific consent before processing.

The employees appealed and their appeal eventually ended up at the European Court of Human Rights.

The employees’ appeal was dismissed.

The ECHR said that courts should take into account the following:

  1. Whether the employees had been notified of CCTV being installed.
  2. The extent of the monitoring and intrusion into privacy.
  3. Whether the employer has legitimate reasons. The more intrusive the monitoring, the greater the justification required.
  4. Whether less intrusive monitoring methods were available.
  5. What use the employer made of the CCTV evidence.
  6. Whether there were appropriate safeguards in place.

The court said that the supermarket had substantial justification for installation and use of the data, given the recorded shortfalls in takings. The fact that they had informed the staff that public CCTV was being installed and placed signs up were crucial.

So the answer to today’s question is yes an employer can install and use covert CCTV but needs to do so in a managed and methodical way.