UK: European Court determines that dismissal for theft in reliance on limited covert video surveillance was fair

The Grand Chamber of the European Court of Human Rights has ruled that the dismissal of employees based on evidence of workplace theft obtained through covert CCTV was justified and did not involve a breach of the employees' right to privacy under Article 8 of the European Convention on Human Rights.  (López Ribalda v Spain)

The Grand Chamber overturned a previous chamber decision and held that the Spanish courts were entitled to uphold the dismissals as fair, notwithstanding the employer's failure to notify employees in advance of the existence of the cameras (a requirement of Spanish data protection law).  The data protection breach was just one factor to be taken into account in determining whether the use of covert surveillance was proportionate.  This was outweighed by other factors, namely that the surveillance took place in an area open to the public (the shop floor) where there would be a limited expectation of privacy, it only lasted for ten days (even though the employer had not set a maximum duration), only the supermarket manager, the company's lawyer and the union representative viewed the footage before disciplinary action was taken, and warning staff about the cameras might well have defeated the purpose.  The employer had a reasonable suspicion of serious misconduct by several employees based on significant losses over several months and had a legitimate interest in discovering the culprits, and the limited surveillance used was the only means of achieving this.  In these circumstances, the Spanish courts had acted within their margin of discretion in holding the intrusion to be proportionate and the dismissals to be fair.

The ruling accords with the UK Information Commissioner's Office guidance, which states that covert monitoring will only be justified in exceptional circumstances, for example, as part of a specific investigation into suspected criminal activity, where openness would be likely to prejudice the prevention or detection of crime or equivalent malpractice, or the apprehension or prosecution of offenders.  Its use should also be signed off by senior management.