9 Gough Chambers Employment Law Bulletin - Surveillance in the Workplace
Welcome to the first 9 Gough Chambers Employment Law Bulletin of 2018.
While most of us were burrowing our way through the mid-winter, the European Court of Human Rights ("ECHR") has been busy considering the rights of workers subject to surveillance at work. The decisions make sobering reading for employers still getting to grips with the impact of ever expanding data protection legislation.
The relevant right is enshrined in Article 8 of the European Convention on Human Rights, which protects the right to privacy as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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 well-being 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 freedoms of others."
When considering privacy cases, the ECHR strives to strike a balance between the rights of both parties.
In Antovic and Mirkovic v Montenegro  ECHR 1068, the ECHR considered the case of two professors who complained about the installation of video cameras in the teaching auditoriums at the University of Montenegro. The professors were told about the existence of the cameras. The data was only accessible by the Dean of the relevant department and was stored for one year. The purpose of the cameras was stated to be to ensure the safety of property and people and to monitor teaching. Following a complaint by the professors to the Personal Data Protection Agency, the cameras were removed. The professors brought successful claims for compensation to the ECHR. The ECHR held that their Article 8 right to privacy had been breached. The interference with that right did not fulfil a permissible aim in that there was no evidence of danger to people and property and monitoring of teaching was not a legitimate ground for surveillance.
The decision is consistent with the recent judgment of the Grand Chamber in Barbulescu v Romania (GC no. 61496/08, 5th September 2017) where it was held that the monitoring of an employee's Yahoo messenger account at work was an interference with his Article 8 right to privacy. Although the employee was told that his communications would be monitored, he was not informed of the extent or nature of such monitoring or of the possibility that the employer would have access to the content of such communications.
In the recent case of Lopez Ribalda and others v Spain (nos. 1874/13 & 8567/13) the employer went further than the University Dean and installed covert surveillance cameras to address suspected thefts by employees. The employees, who worked at the family?run supermarket in Spain, were aware that cameras had been placed at the entrance and exit of the supermarket, directed at detecting thefts by customers. They were not told that further cameras had been installed to monitor the actions of the cashiers at the check-out counters, with the cameras able to zoom in on the area behind the cash desks. As a result of the covert surveillance, the employer confirmed its suspicions that staff were indeed stealing items from the store and assisting customers to steal items. 5 employees were dismissed.
In its judgment, dated the 9th January 2018, the ECHR found that the covert surveillance breached the Article 8 rights of the employees and was a considerable intrusion into their private life. It entailed a: “recorded and reproducible documentation of a person’s conduct at his or her workplace, which he or she, being obliged under the employment contract to perform the work in that place, cannot evade. “ Even though the employer was a private company, the State had an obligation to ensure that any measures to protect individual rights were extended to secure respect for private life between individuals and private companies. The employer had not complied with its obligation, under the Spanish Personal Data Protection Act, to inform employees of the existence of a means of collecting and processing their personal data.
The ECHR was particularly concerned by the fact that the video surveillance was not aimed at the claimants specifically, but at all staff who were working on the cash registers and that there was no time limit on the surveillance, with the cameras switched on during all working hours. Less intrusive measures, such as notifying the employees in advance as to the use of the cameras, even in a general sense, could have been used. The case therefore contrasts with the earlier decision of the ECHR in Kopke v Germany  ECHR 1725 in which covert video surveillance targeted at 2 specific employees who were under suspicion, was limited to 2 weeks.
While the employees were awarded compensation for breach of their Article 8 rights, the ECHR declined to interfere with the decision to dismiss them. The employees had been able to challenge the recordings and they were not the only evidence relied upon to dismiss them. Indeed, a number of the employees admitted the conduct.
The outcome of the above cases is likely to have been similar in the UK, with recourse to the Data Protection Act 1998. In the UK, employees must also be “explicitly, precisely and unambiguously” informed of the existence of a personal data file and as to how their data will be held and used. It is now clear that covert monitoring should only be carried out in exceptional circumstances and will only rarely be justified.
From the 25th May 2018, the General Data Protection Regulations will become law, implementing a single legal framework across the EEA and expanded duties upon employers as to the holding and use of data. Employers should be alive to the relevant issues now and it would make sense to ensure that sufficient privacy policies are in place over the coming months to enable employees to be clear as to their rights.
Guidance on the use of surveillance cameras in the workplace has been published by the Information Commissioner. Employers should also have regard to the ACAS website which provides useful guidance on "Being Monitored at Work" here.
Article by: Laura Elfield