(With thanks to Lois Rodriguez from our Madrid office for preparing this post in collaboration with Yana Komsitsky.)
Before conducting workplace surveillance, employers who want to monitor their workplaces, even if they suspect their employees of stealing or other nefarious activity, should heed the recent European Court of Human Rights (ECHR) judgement in the case of Lopez Ribalda and others v. Spain.
In early January, the ECHR held in favor of five supermarket chain employees who had been dismissed after they were caught stealing on hidden cameras because the cameras had intruded on their right to respect for private and family life.
The supermarket had identified some irregularities in stock levels. To investigate, it installed both visible and hidden cameras and recorded videos throughout the workday over a period of several weeks. It informed the employees about the visible cameras but not about the hidden cameras. The footage showed the five employees stealing products, sometimes in concert with customers.
After the Spanish court found in favor of the supermarket declaring their terminations fair and unsuccessful appeal, the employees brought a case before the ECHR alleging, among other things, their privacy had been violated by the supermarket’s use of hidden cameras.
Although each European member state may have its own additional prerequisites for workplace surveillance, any use of hidden cameras in a European workplace should remember:
- Other less invasive alternatives must be considered before hidden cameras are used.
- To justify the invasive nature of hidden cameras, the employer must have legitimate grounds which outweigh the privacy impact (e.g. strong suspicions of theft).
- Employers must consider whether it is necessary to inform employees and others impacted in advance of launching visible or hidden surveillance.
- Surveillance must be limited in time (not conducted on a 24/7 or long term basis).
- Footage should be kept confidential, and access restricted to those with a need to know.
For more information, contact your Baker McKenzie lawyer.