While it may be a controversial issue among staff members, workplace monitoring is a legitimate and legal method that employers can implement to protect their staff and business.  Permitted methods of surveillance include maintaining CCTV systems, monitoring internet browsing history, inspecting email traffic, listening in on telephone calls or conducting employee bag searches.

If implemented correctly, effective systems which monitor employees' activity can help safeguard against harmful work practices and encourage higher levels of productivity within an organisation.  Employers, however, must be mindful that any such monitoring activity should be proportional to the employment risks requiring surveillance.

An employer must be particularly mindful of data protection considerations. Caselaw to date has confirmed that monitoring staff through the use of CCTV systems will not breach an employee's right to privacy or the rights of employees as data subjects under data protection legislation provided that the CCTV policy is clearly communicated to employees and the data is processed in accordance with data protection legislation to include compliance with GDPR.

Further guidance has now been given in Ribalda and Others v Spain a Judgment of the Grand Chamber in Strasbourg on 17 October 2019, and covert surveillance may be allowed in certain circumstances. At the time of the relevant events, the applicants were all working in a Spanish supermarket chain.  The first three applicants were cashiers, the fourth and fifth were sales assistants behind the counter.  From March 2009 onwards the supermarket manager noticed some inconsistencies between the stock level and the sales figures.  In the following months he identified losses of €7,780 in February, €17,971 in March, €13,936 in April, €18,009 in May and €24,614 in June.  In the context of an internal investigation to shed light on the losses, on 15 June 2009 the manager installed CCTV cameras, some visible and others hidden.  The visible cameras were directed towards the entrances and exits of the supermarket.  The hidden cameras were placed at a certain height and directed towards the checkout counters.  Three tills were covered by the range of each camera, including the areas in front of and behind the counters.

During a meeting the supermarket staff were informed of the installation of the visible cameras on account of the management's suspicions about thefts.  Neither the staff nor the staff committee were informed of the hidden cameras.  There was already a sign indicating the presence of general CCTV cameras being installed in the shop where the applicants worked.

On 25 June 2009 the management of the supermarket informed the union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees.  The representative watched the recordings and on 25 and 29 June 2009 all the workers suspected of theft were called to individual interviews.  14 employees were dismissed.

Prior to each interview all the employees concerned had a meeting with the union representative, who told them she had watched the video recordings.  During the meeting a number of employees admitted that they had been involved in the thefts with other colleagues.  The dismissal letters given to the employees indicated that the hidden CCTV cameras had filmed them, on several occasions between 15 and 18 June 2009, helping customers or other supermarket employees to steal goods and stealing goods themselves.

The applicants argued that their employer's decision to dismiss them had been based on recordings obtained by means of video surveillance in their workplace, in breach of their right to respect for their private life, and that, by refusing to declare their dismissal null and void, the domestic courts had failed in their duty to protect that right. They relied on Article 8 of the Convention which reads as follows:

"1.        Everyone has a right to respect for his private… life…

2.         There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others."

The parties submissions

1. The applicants submitted that the fact they had been continuously filmed in their workplace throughout their entire working day, without their knowledge and without being able to evade the monitoring, resulted in Article 8 of the Convention being applicable.
2. The Government argued that the applicants had been working in a public place, in direct contact with the public.

Considerations of the Court

1. Duration of Surveillance: The Court noted that the applicants were subjected to a video surveillance for a period of 10 days, the cameras being directed towards the supermarket checkout area and its surroundings.
2. Expectation of Private v Public life: As to whether the applicants had a reasonable expectation that their private life would be protected and respected, the court observed that their workplace, a supermarket, was open to the public and that the activities filmed there, namely the taking of payments for purchases by the customers, were not of an intimate or private nature.  Their expectation as to the protection of their private life was thus necessarily limited.
3. Prior Information of Monitoring: The court noted that in the present case domestic law provided a statutory framework which obliged a person responsible for a video surveillance system, even in a public place, to give prior information to the persons being monitored by such a system.  The applicants had been informed about the installation by their employer of other CCTV cameras in the supermarket, those cameras being visible and positioned such as to film the shop's entrances and exits.  In those circumstances, the applicants had a reasonable expectation they would not be subjected to video surveillance in the other areas of the shop without being informed beforehand.
4. Barbulescu: As regards the monitoring of employees in the workplace, the court relied on its judgment in Barbulescu in which it had set out a number of requirements that must be met by any monitoring of the correspondence and communications of employees if it is not to breach Article 8 of the Convention.  In that context, in order to ensure the proportionality of video surveillance measures in the workplace, the domestic court should take account of the following factors when weighing up the various competing interests;

i) Whether the employee has been notified of the possibility of video surveillance measures being adopted by the employer and of the implementation of such measures.

ii)The extent of the monitoring by the employer and the degree of intrusion into the employee's privacy

iii) Whether the employer has provided legitimate reasons to justify monitoring and the extent thereof.  The more intrusive the monitoring, the weightier the justification that will be required.

iv) Whether it would have been possible to set up a monitoring system based on less intrusive methods and measures.

v) The consequences of the monitoring for the employee subject to it.

vi) Whether the employee has been provided with appropriate safeguards, especially where the employer's monitoring operations are of an intrusive nature.

The Chamber found that the positive obligations imposed on the state by Article 8 of the Convention required the national authorities to strike a fair balance between two competing interests, namely, on the one hand the applicants' right to respect for their private life and, on the other, the possibility for their employer to ensure the protection of its property and the smooth operation of its company, particularly by exercising its disciplinary authority.

Findings:

• The installation of the video surveillance had been justified by legitimate reasons, namely the suspicion, put forward by the supermarket manager on account of the significant losses recorded over several months, that thefts had been committed.  They also took account of the employer's legitimate interest in taking measures in order to discover and punish those responsible for the losses, with the aim of ensuring the protection of its property in the smooth functioning of the company.
• In relation to the extent of monitoring and the degree of intrusion into the applicants' privacy,  the measure was limited as regards the areas and staff being monitored - since the cameras only covered the checkout area, which was likely to be where the losses occurred - and that its duration had not exceeded what was necessary in order to confirm the suspicions of theft.  The court took the view that it was necessary to distinguish, in the analysis of the proportionality of a video surveillance measure, the various places in which monitoring was carried out, in the light of the protection of privacy that an employee could reasonably expect.  That expectation is very high in places which are private by nature, such as toilets or cloakrooms. It is manifestly lower in places that are visible or accessible to colleagues, as in the present case, or as in the present case to the general public.  In relation to the duration of the time, the court noted that the recording in fact lasted for 10 days and ceased as soon as the employees responsible had been identified.  Therefore, it was their view that the length of the monitoring did not appear excessive in itself. It was also noted that only the supermarket manager, the company's legal representative and the union representative knew the recordings obtained through the impugned video surveillance before the applicants themselves had been informed.  Having regard to those factors, the court took the view that the intrusion into the applicants' privacy did not attain a high degree of seriousness.

The court noted also that the extent of the losses identified by the employer suggested that thefts had been committed by a number of individuals and that provision of information to any staff member in relation to the installation of the CCTV surveillance might well have defeated the purpose of the video surveillance, which was, as those courts noted, to discover those responsible for the thefts but also to obtain evidence for use in disciplinary proceedings against them.

The Court found that the protection of significant public or private interests could justify the lack of prior information  and  the interference of the applicants' privacy was proportionate.

Summary of findings of why it was justified:

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

What does this mean?

Well it does not mean that when there is the slightest suspicion of misappropriation or any other wrongdoing on the part of employees this will justify the installation of covert video surveillance by the employer. There would have to be the existence of reasonable suspicion that serious misconduct has been committed and in this case the extent of the losses went towards justifying the surveillance. It appears to be more justifiable in circumstances where there is a suspicion that there is concerted action by several employees rather than one single employee.

Case report available here:
https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-197098%22]}