Covert monitoring not necessarily breach of Article 8 privacy rights

The Grand Chamber of the European Court of Human Rights has ruled that the use of covertly obtained CCTV footage to dismiss a group of Spanish employees for theft had not infringed Article 8 (the right to a private life) or Article 6 (the right to a fair trial). In reaching this decision it has overturned last year’s judgment from a smaller panel of judges which was in favour of the workers concerned.

The Grand Chamber had a close look at how the footage had been collected and used. It needed to assess whether its use in unfair dismissal proceedings amounted to a breach of the Spanish State’s obligations to safeguard the Article 8 rights of its citizens. This involved a “proportionality assessment” – in this case striking a balance between the rights of the workers involved to a private life and the legitimate interests of the employer to identify and sanction the workers who were stealing from it.

The Grand Chamber set out a list of factors to consider when making such an assessment, of which the following were particularly significant:

• Justification for monitoring: it had been triggered by a reasonable suspicion of serious misconduct by a number of employees, following stock discrepancies of up to €20,000 per month
• Where monitoring took place: it had taken place in the section of the supermarket open to the public, rather than in a private area
• Extent of monitoring: it had been conducted over a short period, and only individuals under reasonable suspicion of stealing were targeted
• Procedural safeguards: the employers had not informed the employees in advance of the monitoring, in breach of Spanish data protection legislation; on the other hand, in these circumstances prior notification would have defeated its purpose
• Use of the footage: circulation of the footage was strictly limited, and was not used for any purpose other than the disciplinary proceedings.

Weighing everything in the balance, the Grand Chamber decided (by a majority of 14:3) that the workers’ article 8 rights had not been infringed. It went on to find (this time unanimously) that there had no breach of Article 6 either. It placed the main emphasis on the overall fairness of the various domestic hearings. The Spanish courts had assessed (and rejected) the workers’ arguments that the evidence had been obtained in breach of Article 8. They had also looked at the totality of the evidence (the employer has also produced doctored till receipts) and noted that, although the footage had been obtained in breach of Spanish data protection law, the workers had been able to view it and had not challenged its authenticity.

How far is this decision relevant to employers in the UK, including private sector employers who are not directly subject to the European Human Rights Convention? Decisions involving other European jurisdictions do not always translate easily to the UK, but the following points can be made:

• Employment tribunals: this latest guidance from the European Court of Human Rights must be taken into account when assessing the fairness of a dismissal, since they are obliged by the Human Rights Act to read domestic legislation, where possible, compatibly with relevant convention rights
• Data protection: this case did not address data protection issues head on, simply noting that in the view of the Spanish courts the evidence had been obtained in breach of Spanish data protection law. Unlike in Spain, covert monitoring is allowed in the UK in exceptional circumstances. This latest decision will need to be taken into account when making the required impact assessment before embarking on any covert employee monitoring. Guidance from the Information Commissioner's Office makes it clear that covert monitoring will only be acceptable in rare cases.
• Admissibility of evidence: the impact of this case is more limited in relation to the admissibility of evidence obtained in breach of Article 8, or data protection legislation. In either case, there appears to be no Human Rights presumption against the inclusion of such evidence: it is merely one factor to weigh in the balance when considering the overall fairness of the hearing. Much the same approach is currently adopted in the UK, whether in the employment tribunal or the ordinary civil courts. However, there is no doubt that the more serious the breach, the less likely the evidence is to be admissible, all other things being equal.
• Earlier rulings: two years ago the Grand Chamber issued a ruling in a Romanian workplace privacy case that came down on the side of the worker. That case was about workplace monitoring of an instant messaging account, and that time it decided that the employers had infringed the worker’s Article 8 rights. It is helpful to consider these decisions together when assessing whether proposed workplace monitoring is likely to be in breach of workers’ privacy rights.