UK: Surveillance - European decisions highlight right to privacy in the workplace

Two recent decisions – along with the imminent implementation of the GDPR - highlight the importance for employers of reviewing monitoring practices and policies. In Antović and Mirković v Montenegro, the European Court of Human Rights (ECHR) ruled that it was a breach of two professors' privacy rights to install surveillance cameras in student auditoriums, with a view to protecting the safety of property and people and monitoring teaching. The ECHR stated that private life may include professional activities taking place in a public context and that the auditoriums should be treated like any other workplace. Given the intrusion that workplace surveillance represents (whether covert or not), the employer here had insufficient justification given that there was no evidence that people or property had been at risk.

This was followed by a second decision of the ECHR in López Ribalda v Spain holding that the use of hidden video cameras in a supermarket to monitor suspected thefts by a number of cashiers violated the cashiers' privacy rights. Covert monitoring of all staff throughout working hours and without time limit was not justified, and the employer should have notified staff in advance and provided the necessary information to comply with data protection law.

These cases are consistent with guidance from the UK Information Commissioner that covert surveillance will only be justified in exceptional circumstances and must be narrowly targeted and as time-limited as possible. Under the GDPR, employees will have right to greater transparency in relation to how they are monitored, so now is a good time to review and refresh monitoring policies prior to the 25 May 2018 deadline. The latest briefing in our GDPR mini-series places a spotlight on the key compliance considerations in the employment sphere and is available here. Our webinar focussing on issues for employers and further resources are available on our GDPR hub.

Another area which may require review in light of the GDPR is the requirement for job applicants to obtain criminal records checks, particularly if this is required as a matter of course for all job roles. Since mid-January, applications for basic checks for individuals in England and Wales must now be sent directly to the Disclosure and Barring Service (rather than Disclosure Scotland) and an online application is possible; however, it is important to ensure there are GDPR-compliant grounds for processing this personal data. Please contact your usual HSF contact if you would like to discuss this further.