Employee Monitoring - Is Big Brother watching?

23rd October 2019 Media Law

In 2009, M.S.A, a Spanish supermarket began to notice some discrepancies in stock levels. They decided to install hidden security cameras near the checkout areas. The footage in question captured several employees (and employee-assisted customers!) helping themselves to various items.

The employees were subsequently dismissed, but they complained that their right to respect for their private life (Article 8) and to a fair trial (Article 6) had been breached by M.S.A.

The case worked its way through the Spanish legal system, and went to a Panel of the Grand Chamber of the European Court of Human Rights, before reaching the Grand Chamber of the European Court of Human Rights (ECHR). The ECHR found that Spanish domestic law had struck the right balance between protecting individuals’ rights and the legitimate interest of a business safeguarding its property. Whilst a mere or slight suspicion of misconduct could not justify the setting up of hidden surveillance, a reasonable suspicion of gross misconduct, such as theft, could be justifiable.

The ECHR found by a majority of 14 to 3 that there was no breach of the employees’ legal rights.  The ECHR took into account various factors, including whether less invasive measures could have been adopted. It was stated that in areas which were accessible to the general public there was a lower expectation of privacy. The ECHR stated that this was different to areas where one would expect complete privacy, such as toilets and fitting rooms.

The covert cameras were only restricted to the cashier tills. The employees were already aware of some of the apparent surveillance CCTV cameras, but they had not complained about any privacy intrusions. Additionally, no arguments were raised as to the authenticity of the footage.

Overall, the ECHR unanimously concluded that the employees’ right to fair trial had not been infringed.  In a nutshell, the use of the CCTV evidence in the dismissal proceedings was not unfair.

The M.S.A case brings to mind the case of Bărbulescu v Romania, where the ECHR considered a similar situation involving an employer spying on messaging accounts of one of its employees. With a majority ruling of 11 to 6, the Grand Chamber of the ECHR ruled in Bărbulescu that there was a substantial and unjustified infringement of Article 8.

It was stated that employers were required to engage in a proper risk assessments of the degree of privacy interference, give staff notifications of surveillance and keep up-to-date policies.

In general terms, these cases show that the ECHR will assess the merits of a complaint arising from employee monitoring on a case-by-case basis. A single foolproof checklist to avoid liability does not exist and what is crucial, is that employers carry out regular risk assessments, communicate relevant policies clearly to employees and take proportionate measures to balance all various interests involved.  This is not a straightforward exercise.

For more information, please contact our specialist advisors in JMW’s Media, Data Privacy and Reputation Management team on 0345 872 6666.

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Nick McAleenan is a Partner located in Manchester in our Media & Reputation Management; Data Protection & Privacy department

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