Employers: can you use surveillance cameras to keep an eye on your staff?

Suspect employees of stealing from you and want to prove it by secretly filming them at work with covert video surveillance? Think again.

A recent case in the European Court of Human Rights (EUHR) ruled that a Spanish supermarket which filmed dishonest cashiers in this way, and then sacked them, had infringed their right to privacy and breached data protection laws.

With the new General Data Protection Regulations (GDPR) coming into force this May, it is a case worthy of note as data protection issues for employers will come increasingly under the spotlight.

Background

In 2009, ten employees of a Spanish supermarket chain came under suspicion of theft after the shop manager noticed regular discrepancies between stock levels and what was actually sold.

The employer installed both visible and hidden cameras, telling the employees only about the visible ones, so they were unaware they were being filmed.

All the workers suspected of theft were then summoned to individual meetings where they were shown the videos, which had caught them on film stealing items as well as helping customers and other co-workers to steal items.

In total, they had taken €20,000 worth of stock and were dismissed.

What happened next?

The workers claimed unfair dismissal but the Spanish courts accepted the film recordings as evidence and upheld the dismissal decisions.

The group then lodged a claim in the ECHR which ruled in their favour based on the fact that though they had been told about some visible surveillance cameras they did not know about the hidden ones.

This was, the ECHR concluded, a considerable intrusion into private life under Article 8 and a fair balance between the parties' rights had not been struck.

In addition, data protection rights had been breached because employees must be "explicitly, precisely and unambiguously" informed of the existence of a personal data file, how data will be processed, the purpose for collection and the recipients of the data.

Implications for employers

The case acts as a reminder for employers to act with caution when it comes to covert surveillance which should only be carried out in a proportionate manner and in exceptional circumstances.

Apart from a risk of breaching an employee's right to respect for privacy under the Human Rights Act, there is a chance that if monitoring is carried out against the law, including data protection law, an employer could risk claims for unfair dismissal, constructive dismissal, discrimination as well as financial damage by way of compensation payments and fines from the Information Commissioner.

With the GDPR looming, it is a timely reminder that the processing of employees personal data can take many forms and employers should remember to:

• Make sure they have a clear and detailed policy in place and make sure workers are aware of its contents;
• Consider less intrusive ways of achieving their purpose and look carefully at whether monitoring is justified;
• Seek legal advice before using covert surveillance to ensure they do it in a way which does not infringe an employee's right to privacy;
• Review all procedures in relation to data protection issues to ensure compliance.

For help and advice about the law in this area and what you can to do prepare for GDPR please contact Wards Solicitors' Business Employment team.