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8th February 2018

By Sophie Banks, Solicitor in the Employment team

An employee’s right to privacy in the workplace is a hot topic at the moment, and you may recall our update last September, which considered the ECHR ruling that a Romanian man should not have been fired for sending private email messages at work as it was a breach of the right to respect for his private and family life. There have since been two further ECHR decisions relating to video surveillance at work which have also considered an employer’s legitimate aim of protecting their business interests set against an individual’s right to privacy.

The first case of Antovic and Mirkovic v Montenegro concerned a University that installed video surveillance in lecture theatres to protect “the safety of property and people”, and also monitor the teaching. Two professors from the University brought compensation claims on the basis that their privacy rights had been infringed by the video surveillance. The domestic court's finding was that they had not been violated, as the cameras only captured public teaching areas. The ECHR disagreed and confirmed that the right to a private life includes an individual’s business and professional activities, so surveillance in the workplace can constitute an infringement of an individual’s rights.

The second decision was in the case of Lopez Ribalda & Ors v Spain which concerned a supermarket that installed cameras to investigate suspected thefts that had recently occurred. The employees were told that cameras were being installed around the store, but not that hidden cameras were also put in place to specifically monitor the staff. When the employer relied on covert images to dismiss several employees that were found stealing, the employees claimed that their privacy and data protection rights had been infringed. The domestic court found that the covert surveillance by the employer was justified and proportionate. The ECHR disagreed, and upheld the employees' claim, finding that the Spanish courts had failed to strike a fair balance between the rights involved. The covert video surveillance of all employees over a long period of time was found to be a considerable intrusion into an employee’s private life, and was not a proportionate means of protecting a legitimate aim. A more targeted and time-limited approach may however have been acceptable in these circumstances.

These decisions confirm the point that, whilst the use of surveillance can be justified if the employer has a legitimate aim (such as to uncover misconduct), monitoring like this should only be restricted to that which is necessary. In particular, the use of covert surveillance should only be done in exceptional circumstances, as the Information Commissioner suggests it will be rare for it to be justified. Employers should therefore consider limiting any surveillance as much as possible e.g. to just employees whom they suspect of misconduct and for as short a period as possible to enable them to get a fair picture of events. Thought should also be given to whether less intrusive steps can be taken, and a written note of any decision to commence surveillance and the reasons for it should be made before it commences, particularly in order to comply with the GDPR.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2018.

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