Most of us are well aware that our actions, behaviour and information are monitored through mass surveillance on a daily basis, but is covert recording in the workplace a step too far?

While many might be outraged at the thought of their employer secretly monitoring their activities, in reality, a large percentage of workplaces will operate some form of surveillance, whether that’s monitoring inboxes when an employee is out of office, using screenshotting software to keep an eye on employees’ online activity, or installing devices on vehicles to keep tabs on drivers’ movements.

In fact, in 2017, one company even admitted to snapping photos of its staff through their webcams every 10 minutes to ensure workers aren’t slacking off, though most would agree that this appears a little extreme.

The legalities

The Data Protection Act doesn’t prevent employers from monitoring employees – and there are often legitimate reasons to do so – provided this doesn’t infringe upon their right to privacy or their rights under GDPR. Employers should also be mindful that contravening employees’ privacy by inappropriately filming them may damage the implied relationship of mutual trust and confidence between employer and employee, which may give rise to claims for constructive unfair dismissal.

Of course, the safest way to prevent legal issues or damage to the employment relationship is to bring any workplace surveillance to employees’ attention and explain the reasons behind it. In fact, the company behind the controversial webcam surveillance insists that staff are actually on board with such intrusive monitoring.

But what happens when a situation requires covert approach? Can employers, for example, secretly record their staff if they suspect misconduct?

While it’s a risky move, a recent decision by the European Court of Human Rights (ECHR) has confirmed that covertly recording workers suspected of stealing will not necessarily violate their right to privacy or their right to a fair trial.

López Ribalda and Others v Spain

The applicants in this case were five supermarket cashiers/sales assistants who were dismissed after the employer noticed irregularities between its stock and its sales over a five-month period. To confirm its suspicions that staff were stealing from the company, the manager of the store installed both visible and hidden CCTV cameras, which soon provided evidence that 14 employees had been helping customers and other co-workers to steal items, as well as stealing themselves.

Faced with tangible evidence of gross misconduct, all 14 were dismissed, which prompted five to bring claims for unfair dismissal.

Employment Tribunal

The basis of the applicants’ claims centered around their objection to the employer’s use of covert video surveillance. The applicants insisted that this constituted a breach of their privacy rights, and for this reason, the recordings obtained should not be considered as evidence when deciding whether or not their dismissal was fair.

Three of the employees had actually signed settlement agreements with their former employer before starting the claim. As such, their claims were found to be invalid and were immediately dismissed.

In the case of the other two applicants, things were less clear-cut. Here, the Spanish Employment Tribunal examined the case through the lens of proportionality, a concept that is employed both explicitly and implicitly in various employment law decisions. Essentially, in order for an act which infringes on privacy to be justified, it must be in pursuit of a legitimate aim and the least restrictive way of achieving that aim. On this basis, the Tribunal determined that the recordings had not breached the applicants’ right to privacy and were valid evidence, and as such, their dismissal had been lawful.

The employees appealed to the Spanish High Court, who upheld the original decision of a fair dismissal.

European Court of Human Rights

In 2018, appeals escalated to the European Court of Human Rights, where the applicants maintained that the employer’s use of covert surveillance was unlawful, and as such, that courts should not have been able to rely on the covert recordings obtained by the employer in order to determine that their dismissal was fair.

In particular, they argued that the employer’s actions had breached Articles 8 and 6 of the European Convention on Human Rights.

  • Article 8 provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.
  • Article 6 states that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law.”

Initially, a Chamber judgment held by six votes to one that there had been a violation of Article 8 (right to respect for private life) but unanimously agreed that there had been no violation of Article 6 (right to a fair trial). 

However, the case was then referred to the Grand Chamber, where a panel of 17 judges ruled that the domestic courts’ conclusions on the case had been reasonable.

It confirmed that:

  • The level privacy employees can reasonably expect varies by location. For example, while a complete ban on surveillance would be justified in places such as toilets, where there is a high expectation of privacy, it is unreasonable for employees to expect the same level of privacy in places that are open to the public, such as the shop floor. As the employer’s surveillance had been confined to the checkout area, i.e. just enough to capture evidence of theft, the employer had not gone beyond what was necessary to achieve its aim.
  • As the surveillance had only lasted 10 days, and only a restricted number of people had viewed the recordings, the intrusion into the employees’ privacy had not attained a high degree of seriousness.
  • The recordings had not been used for any other purpose than to confirm the employer’s reasonable suspicious of theft, identify those involved, and protect the company from further losses. These were legitimate aims that could not have been achieved in any other way.
  • While slight suspicion of wrongdoing by an employee would not justify covert surveillance, reasonable suspicion of serious misconduct, coupled with a risk of considerable losses to the employer, could provide weighty justification.
  • Despite international consensus that employees should be informed of any surveillance, the domestic courts had not exceeded the limits of their discretion in finding that any infringement of the employees’ rights had been proportionate given the circumstances.
  • Lastly, admitting the recordings into evidence had not compromised the employees’ right to a fair trial, as the courts had taken into account other evidence, such as the parties’ testimony, in reaching their decision. Further, the recordings provided sound evidence that did not require further corroboration, and the employees had never sought to contest their authenticity or accuracy.

James Tamm

Director of Legal Services

Expert Comment

Even though this is a Spanish case, it is relevant to UK employers. UK courts will take note and be guided by the decisions of the ECHR and employees will often cite breach of their “human rights” in defence to disciplinary proceedings. This case is a useful reminder that in certain, limited, circumstances employers can resort to covert surveillance if they believe criminal activity is taking place. Of course, it does not give employers carte blanche to hide cameras everywhere and one must always be careful not to surveil areas where privacy is expected – in a toilet or, for example, a resident’s room in a care home.

The issue of surveillance in general is a tricky one. No-one likes to think that someone is watching everything they do, even at work. Any company that takes significant measures to monitor their workers constantly may well find that results in higher rates of staff turnover and even decreased productivity given that it tends to detract from their sense of autonomy and independence.

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