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It is now well accepted that an employee has a right to privacy under Article 8 of the European Convention on Human Rights. In any workplace, of course there will be circumstances in which the employer’s need to supervise employees and enforce disciplinary rules and workplace standards will mean that some level of intrusion is inevitable. The difficulty is to strike the right balance between the legitimate interests of the employer and the rights of the employee.
One particularly controversial area is covert surveillance, where the activities of employees are monitored or recorded without their knowledge. In Lopez Ribalda & ors v Spain, a Spanish supermarket was concerned about the theft of stock on the part of employees and installed hidden cameras zoomed in on checkout counters. A number of employees who were not told of these cameras were accused of theft as a result of the surveillance and subsequently dismissed. Their claims of unfair dismissal failed and the employees then took their case to the European Court of Human Rights.
The Court held that the covert surveillance of employees through the use of hidden video cameras was a considerable intrusion into private life. The issue was whether the Spanish courts had struck a fair balance between the employees’ right to privacy and the employer’s right to protect its property. The court noted that under Spanish data protection law there was an express right for individuals to be informed of in advance of any surveillance and the employer in this case had not complied with that law.
The Court held that, given that law, the employees had a reasonable expectation that they were not being subjected to covert surveillance. Furthermore, the surveillance was not targeted against specific employees in respect of whom the employer had a reasonable suspicion – it was aimed at check out staff generally. The Spanish Courts had failed to strike the right balance and there had been a breach of Article 8. The employees had not, however been denied a fair trial under Article 6 of the Convention and the Spanish courts were not obliged to disregard the evidence that had been gathered in the course of the surveillance. The Court refused to award damages to the employees for lost wages, but did award each EUR 4,000 in ‘non-pecuniary damages’ – essentially an award for injury to feelings.
It should be noted that the Spanish data protection law is more specific in the treatment of covert monitoring than the UK version. However the Information Commissioner’s Employment Practices Code stresses that covert monitoring should only be contemplated when it is part of a specific investigation into criminal conduct – or its equivalent. It should be carefully targeted and time limited  - and only authorised in exceptional circumstances. Employers in the UK who follow the good practice recommendations set out by the Information Commissioner should be in a strong position.


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