210: No breach of privacy rights where Spanish supermarket installed covert CCTV to monitor suspected thefts (Grand Chamber of European Court of Human Rights)

In Lopez Ribalda and others v Spain, the Grand Chamber of the European Court of Human Rights has ruled that covertly recording employees as part of an investigation into suspected thefts and using the footage in an Employment Tribunal did not breach the European Convention on Human Rights (ECHR).

The five applicants in this case worked as cashiers in a Spanish supermarket. As part of an investigation into significant stock discrepancies, the employer installed CCTV cameras. The cameras identifying possible thefts by customers were visible, and signs indicated that CCTV was in use. Other cameras were concealed to record possible thefts at the cash desks, and employees were not informed about this covert recording. Ms Ribalda and the other applicants were caught on CCTV stealing goods or helping colleagues and customers to steal goods. All five employees admitted their involvement in the thefts and were dismissed. They subsequently brought unfair dismissal proceedings, arguing that the covert surveillance had been unlawful. Their claims were unsuccessful in the Spanish courts.

The applicants took their case to the European Court of Human Rights, claiming that the use of the covert footage in their unfair dismissal proceedings had breached their right to privacy and their right to a fair hearing under the ECHR. The Court initially upheld the employees’ privacy claim, finding that the Spanish courts had failed to strike a fair balance between the rights involved, and that the covert surveillance was not justified because it breached the domestic legal requirement to inform those affected about the collection of their personal data. The Court also ruled that there had been no infringement of the right to a fair hearing.

On appeal, the Grand Chamber of the European Court of Human Rights agreed that there had been no breach of the employees’ right to a fair hearing but overturned the decision on privacy. The Court identified a number of factors which must be considered in employee surveillance cases, including whether employees were notified in advance, the extent of the monitoring and degree of intrusion, the reasons for the surveillance and the consequences for the employees. In this case, the employer had legitimate reasons for the surveillance based on its significant losses and suspicion of theft; the monitoring had taken place in a public area so the employees’ expectation of privacy was lower; surveillance had lasted only for ten days and was stopped as soon as the culprits were identified; and any prior warning might have defeated the purpose of the surveillance.  The Court concluded that in these circumstances, the employer’s covert recording was proportionate and justified.

This case illustrates that covert recording of employees should only be carried out where there is no less intrusive way of addressing the issue. It is worth noting that three of the Court’s 18 judges disagreed with the judgment on the basis that Spain’s domestic law requirement to be informed of the monitoring should have been decisive, and that only the police and other authorities should have the power to conduct covert surveillance, not employers or private citizens. In the UK, the Information Commissioner advises that covert monitoring of employees will only be justified in rare circumstances, for example, when investigating suspected crimes or serious malpractice.