Risks involved in monitoring and surveillance of employees

 

Striking the right balance between the privacy rights of staff suspected of wrong doing and your right as an employer to protect your business interests and property is a difficult task. In recent months this have been made more difficult by the prevalence of employees flaunting as an “Ace Card” the argument that their right to private life, afforded by Article 8 of the European Convention on Human Rights has been infringed. However, given the rise in disgruntled employee’s relying on Article 8 arguments in some instances to justify their misdemeanours, it’s a balancing act that every employer should make every best effort to master, quickly. Additionally, with the impending introduction of tighter rules and heavier fines regarding data protection violations, it’s crucial for businesses to make the right decisions with regard to the monitoring and surveillance of employees.

In September 2017 we saw the first shift in attitude by the European Court of Human Rights towards Article 8 complaints arising as a consequence of workplace monitoring. In Barbulescu v. Romania the Grand Chamber found in favour of the employee Barbulescu when he complained that his right to private life was violated when his employer monitored the content ofhis email account. Since this ruling we have seen further judgments ruling in favour of employees raising Article 8 complaints arising in the context of the work environment.  Of particular note is Antovic and Mirkovic v Montenegro, European Court of Human Rights [2017]. In this case two University lectures complained that their right to private life as provided by Article 8 was infringed when the University installed video surveillance equipment into the auditoriums where lessons were taught.  Surprisingly, the majority of the European Court of Human Rights agreed with their complaint and held their right to private life was indeed breached.

Dissent amongst the judges

However, it should be noted that not all the judges are enthusiastically supporting Article 8 complaints. In the Montenegro case two of the judges hearing this case disagreed with the judgment of the majority and formed the view that the right to private life was not breached by the University. The dissenting judges considered that University lessons conducted in the, “quasi-public” setting of a lecture auditorium did not engage the protections given by Article 8 to a “private life”. The comments made by these two dissenting judges for a short period raised a glimmer of hope that should a case on similar facts be presented in the future the Court might draw a different conclusion and find in favour of the employer. We did not have to wait very long before a further judgment was passed by the ECHR regarding the controversial issue of surveillance in the workplace.

What about covert monitoring to prevent continued theft?

Unfortunately, the second judgment handed down on 9 January 2018, in the case of Lopez Ribalda and others v Spain ECHR  appears to have scuppered the prospect of a ruling in support of employers. In this case a family owned supermarket was experiencing substantial losses in stock. As it was unclear whether this was as a result of internal or external activities the employer decided to install video surveillance equipment to determine the root cause of the problem. As is commonplace, when most employers are faced with this dilemma the supermarket deployed a two prong approach to the situation and set about installing both visible and hidden cameras. The purpose of the hidden cameras was to catch any internal thefts by the cashiers. Not long after the installation of the covert cameras the employer dismissed 5 employees for theft. Notably, each employ admitted to the thefts in the presence of their trade union representative.

Despite admitting to the thefts each of the employees decided to pursue complaints of unfair dismissal with employment tribunals. When the tribunals found in favour of the employers ruling that each dismissal was fair the employees then raised complaints before another court that their rights to ” private life” under Article 18 of the Spanish Constitution (which gives effect to Article 8 of the European Convention on Human Rights) and data protection rights had been breached. That Court held that the covert recording was necessary and proportionate means by which the employer was legitimately collecting data to protect itself against future losses.

However, when the former employees challenged that Court’s ruling and took their cases to the  ECHR, the decision came down in favour of the employees. The ECHR held that the covert recording amounted to a breach of Article 8 and as a consequence the Spanish Government was ordered to pay to the former employees non-pecuniary damages of 4000 euros each. The rationale behind the judgment was that the domestic courts in dealing with the cases of the former employees had “failed to strike a balance between the applicants’ right to respect for their private life under Article 8 of the Convention and their employer’s interest in the protection of its property rights”.

The Lopez judgment was not wholly accepted by all the judges hearing the case. Two dissenting judges voiced their concerns regarding the damages to be paid to the former employees all of whom had admitted to theft previously. Of particular note are the following disconcerted remarks, “…the conclusion of the majority contradicts the general principle of law: the applicants should not be legally allowed to profit form their own wrongdoing. Therefore, the Convention cannot be construed and interpreted in such a way as to allow wrongdoing.” The judge went as far as to quote a famous Russian writer Solzhenitsyn, who wrote “… no system can survive without repentance and regret. It would be like an oak with a rotten trunk: it would not last long.”

What key points can we draw from these cases?

At present the Human Rights Act 1998 continues to provide employees with the means by which to continue to bring Article 8 challenges. Given the prevalence of judgments upholding employee complaints regarding the violation of their right to “private life” whilst at work, employers should be very careful about taking any steps to undertake covert monitoring/surveillance. Additionally, as data protection rules will soon be heavily policed it’s also advisable that going forward employers should ensure that any workplace monitoring and surveillance is compliant with the General Data Protection Regulations. We are awaiting updated guidance from the Information Commissioners Office in relation permissible monitoring and surveillance post 25 May 2018. In the meanwhile employers may wish to refer to current ICO guidance on the subject matter.