The European Court of Human Rights has found that covertly videotaping an employee at their workplace constitutes an intrusion into their private life in violation of the European Convention on Human Rights. In a decision handed down on January 9, the court ruled in favor of five former employees of a supermarket chain in Spain, who were fired after their employer caught them engaging in or facilitating theft, based on evidence from surveillance cameras that had been installed without the employees’ knowledge, Dentons attorney Claire Maclean explains at Lexology:
The employees challenged their dismissals before the Spanish courts, arguing that the use of covert video surveillance in the workplace without prior notice was unlawful. These challenges were unsuccessful so they raised proceedings before the ECHR alleging that the covert video surveillance violated their right to privacy protected by Article 8 of the European Convention on Human Rights.
The court held that the installation of the covert cameras had not complied with the Spanish legislation on data protection. The Spanish Data Protection Agency had issued an instruction clarifying that anyone using video surveillance had to place a distinctive sign indicating the areas that were under surveillance.
The court ordered Spain to pay each of the applicants 4,000 euros in respect of non-pecuniary damage, plus court costs, but rejected the applicants’ claim that they were entitled to pecuniary damages for the wages they would have earned had the Spanish courts declared their dismissals unfair and reinstated their employment at the supermarket.
The ruling in López Ribalda and others v. Spain is the latest in a series of rulings by the European court restricting how far employers can go in monitoring their employees at work without infringing upon their privacy rights. The court concluded that covert video surveillance of an employee “must be considered, as such, as a considerable intrusion into his or her private life. It entails a recorded and reproducible documentation of a person’s conduct at his or her workplace, which he or she, being obliged under the employment contract to perform the work in that place, cannot evade.”
Last September, the court’s highest appellate division reversed a 2016 ruling in the case of Barbulescu v. Romania, in which an employee had contested his termination for conducting personal communications via a Yahoo Messenger account he had created for work purposes. The ECHR had at first agreed with Barbulescu’s employer that it had a right to read his private chat logs in enforcing its policy barring the use of company resources for personal matters, but on appeal, the court’s Grand Chamber determined that Barbulescu was in the right as he had “not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual contents of his messages.”
The takeaway for employers in the EU is that monitoring employees’ activities or communications without notifying them in advance may be legally risky, even if your home country does not specifically require such notice in domestic law. In these cases, the ECHR has demonstrated a clear inclination to deem employee monitoring an invasion of privacy if employees are not fully informed about it.