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European Court of Human Rights Confirms the Proportionality Test for Use of Hidden Cameras on the Work Floor

Dec.03.2019

With its judgment of October 17, 2019, in the López Ribalda and Others v. Spain case, the Grand Chamber of the European Court of Human Rights (ECHR) revises the judgment of the Third Chamber of that same Court. The Grand Chamber is of the opinion that in certain conditions and in conformity with the proportionality test of article 8 of the European Convention on Human Rights (the “Convention”), the use of hidden surveillance cameras on the work floor in view of revealing a criminal offense (in this case theft), may be justified. 

The Facts

In the context of an internal investigation to discover the reason of inconsistencies between the stock level and the sales figures, an employer installs CCTV cameras in his supermarket. Some of them are visible, others are hidden. During a staff meeting the employees are only informed about the installation of the visible cameras on account of the management’s suspicions about thefts. A sign indicating the presence of video surveillance is installed. After ten days of constant monitoring, fourteen employees are identified and are dismissed with immediate effect for theft.

Two of the fourteen dismissed employees initiate court proceedings arguing that the use of hidden cameras breached their fundamental right to the protection of their privacy and requesting that the recordings obtained by such means should not be admitted as evidence in the proceedings.

The Spanish Employment Tribunal dismisses the employees’ request deciding that in light of the Labor Regulations and article 18 of the Constitution (right to privacy), the fundamental right of the employees was not breached given that,

  • It was justified by reasonable suspicions of serious misconduct.
  • It was appropriate to the aim pursued, namely to verify whether the employee was actually committing misconduct and to adopt sanctions if necessary.
  • It was necessary, because the recordings would provide evidence of the misconduct in question.
  • It was proportionate, because the monitoring was limited in space and time to what was sufficient to fulfil its aim.

On its turn the High Court of Justice of Catalonia confirms the proportionality test performed by the Employment Tribunal and acknowledges the argument that the video-surveillance measures taken by the employer did not require, in the light of section 6(2) of the Spanish Personal Data Protection Act, a prior consent of the employees, the proportionality test being sufficient.

Defeated on national level, the employees bring the case before the ECHR. 

The Grand Chambers Decision

Evaluating whether the Spanish Courts construed their judgment in conformity with article 8 of the Convention, the Grand Chamber concludes it is the case, to the contrary of the Third Chamber:

  • The measure taken by the employer is justified: the installation of the video-surveillance is justified by legitimate reasons, namely the suspicion of theft on account of the significant losses recorded over several months.
  • Regarding the extent of the monitoring and the degree of intrusion, the measure was limited as regards the areas and staff being monitored as the cameras only covered the checkout area, which was likely to be where the losses occurred, and that its duration had not exceeded what was necessary in order to confirm the suspicions of theft (10 days).
  • Consequences: in the circumstances of the case, there were no other means by which to fulfil the legitimate aim pursued and the measure should therefore be regarded as “necessary”.
  • The employees performed their function in a supermarket which is a place that was open to the public and involved permanent contact with customers. The protection of privacy that an employee can reasonably expect differs depending on the place of the video-surveillance: such expectation is considered very high in places which are private by nature (offices, toilets, cloakrooms,…) but it is manifestly lower in places that are visible or accessible to colleagues or to the general public.

In light of these factors, the Grand Chamber takes the view that the intrusion into the employees’ privacy did not attain a high degree of seriousness and, hence, is admissible under the specific circumstances.

Regarding the hidden cameras and the lack of information, the Grand Chamber is of the opinion that although in general, and particularly in the context of an employer-employee relationship, the principles of transparency and the rights on information are fundamental, the “provision of information to the individual being monitored and its extent constitute just one of the criteria to be taken into account in order to assess the proportionality of a measure of this kind in a given case.” (§131-133). In the present case, the Grand Chamber confirms that the national courts did apply the proportionality test correctly by deciding that the employer’s failure to inform the employees about the hidden cameras on the basis of the personal Data Protection Act is not relevant as “only an overriding requirement relating to the protection of significant public or private interests could justify the lack of prior information”. Moreover, the employees “had other remedies available to them, as provided for by the [Spanish] Personal Data Protection Act, for the specific purpose of obtaining sanctions for breaches of that legislation”.

Takeaways

This decision is particularly interesting with regard to the general issue in labor law regarding the use of evidence obtained in an irregular way such as via irregular monitoring. For example, in Belgium, given the multiplicity of European and national rules regarding data processing and privacy to be respected by the employer, it is not easy for the latter to comply with all these rules. When an employer wants to invokes irregular (monitoring) evidence to dismiss an employee, he will have to take into account the potential risk of this evidence being rejected by the Courts because in Belgium case law is divided between courts that defend the hard line, such as the Belgian Supreme Court, and courts that take a more pragmatic approach. The October 17, 2019, judgment confirms that the ECHR takes the more pragmatic approach by evaluating the balance between the fundamental right on privacy of the employees as protected by article 8 of the Convention and the protection of the significant private interests of the employer.

In view of this case law of the ECHR, companies may consider in similar situations (suspicion of theft, fraud, corruption…,) to use hidden camera’s or even hidden monitoring (of e-mails, internet,…), after having applied the proportionality test provided by article 8 of the Convention under the specific circumstances, while respecting of course other applicable (national) legislation.

You can read the full text of this decision of the ECHR on its website in English and French.

Our Brussels Labor & Employment and our Privacy and Cybersecurity practices are available to advise and assist companies with respect to HR privacy questions as well as with any matter related to data protection and privacy issues.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Emmanuel Plasschaert
Partner – Brussels
Phone: +32.2.282.4084
Email: eplasschaert@crowell.com
Frederik Van Remoortel
Partner – Brussels
Phone: +32.2.282.1844
Email: fvanremoortel@crowell.com
Evelien Jamaels
Associate – Brussels
Phone: +32.2.214.2814
Email: ejamaels@crowell.com
Delphine Keppens
Associate – Brussels
Phone: +32.2.282.4081
Email: dkeppens@crowell.com