86: Covert surveillance of supermarket employees to investigate thefts breached European convention for the protection of human rights

In Lopez Ribalda and others v Spain, the European Court of Human Rights has ruled that the right to respect for private life under Article 8 of the European Convention on Human Rights was breached by a Spanish supermarket which installed hidden cameras to investigate suspected thefts by cashiers.

Ms Lopez Ribalda and four other claimants worked as cashiers for MSA, a Spanish supermarket chain. Following the discovery of irregularities in stock levels over a five month period, with losses of up to 24,000 euros a month, MSA decided to investigate using surveillance cameras. Some cameras were visible and aimed at customers. Others were concealed at the tills in order to record possible employee thefts. MSA did not inform the staff committee or employees of the presence of the concealed cameras. Five employees were caught on video stealing items and were dismissed after admitting their involvement in the thefts. They subsequently brought claims of unfair dismissal in the Spanish courts alleging that the use of covert video surveillance had breached their Article 8 privacy rights.

The Spanish Employment Tribunal and, on appeal, the High Court of Catalonia upheld the dismissals, ruling that the surveillance evidence had been lawfully obtained even though prior notice had not been given to the employees as required by Spanish data protection legislation. The surveillance had been justified since there had been a reasonable suspicion of theft. It was also appropriate to the legitimate aim pursued by MSA, necessary, and proportionate.

The employees then took their claim to the European Court of Human Rights which held that the Spanish courts had failed to strike a fair balance between their right to respect for their private life and the employer’s interest in protecting its property by investigating the potential thefts. The Court noted that covert video surveillance in the workplace is a considerable intrusion into private life, since employees are contractually obliged to report for work and therefore cannot avoid being filmed. It was also relevant that the surveillance covered all cashiers, without a time limit, and during all working hours, rather than being targeted at particular individuals. The Court ruled that the supermarket could have safeguarded the employees’ rights by other means, notably by informing them in advance of the surveillance and providing the information required by Spanish data protection legislation. Each employee was awarded 4000 euros in respect of non-pecuniary damage, plus costs and expenses.

In the UK, the Information Commissioner’s Office guidance states that covert monitoring of employees should only be undertaken in exceptional circumstances, and where openness would be likely to prejudice the prevention or detection of crime. This case might have been decided differently if the employer’s covert surveillance had been more targeted and time-limited, and if it had also considered less intrusive methods.