We are always happy to pass on articles from the very worthy BackChat newsletter issued by specialist transport solicitors Backhouse Jones. This is necessary reading for anyone using CCTV either in their premises or in a truck cab.

Covert CCTV to Catch Suspected Thief Violates Their Privacy Rights

Ms López Ribalda worked as a cashier at MSA, a supermarket chain. The manager of the supermarket identified significant discrepancies between the stock levels and what was supposedly being sold. In some months, the discrepancy was as much as €20,000. As part of an investigation, MSA installed surveillance cameras in the supermarket.

The cameras aimed at possible customer thefts were visible. However, other cameras, aimed at recording possible employee thefts, were hidden. The concealed cameras filmed the area behind the cash desks. MSA did not inform its employees that the hidden cameras were in place. Shortly after the video cameras were installed, Ms López Ribalda and four colleagues were caught on video stealing items. The five employees admitted involvement in the thefts and were dismissed.

All five employees brought unfair dismissal claims and the dismissals were upheld by the Spanish employment tribunals. The court accepted that in the circumstances, the covert video surveillance had been lawfully obtained even though prior notice had not been given to the employees which would ordinarily be expected.

This decision was appealed, but the High Court found that the surveillance had been justified, since there had been reasonable suspicion of theft, appropriate to the legitimate aim pursued, necessary and proportionate. It is these four factors which must be carefully considered when determining whether it is lawful to install or use material such as CCTV which has data protection implications.

European Court of Human Rights (ECHR)
The employees appealed further to the ECHR, complaining that the use of footage taken from the covert video surveillance in the unfair dismissal proceedings had breached their right to privacy under Article 8 of the ECHR. The ECHR upheld the employees’ Article 8 claim, finding that the Spanish courts had failed to strike a fair balance between the rights involved for both the employee and employer.

It was considered whether the employees’ privacy rights had been infringed. The court observed that covert video surveillance of an employee in their workplace must be considered a considerable intrusion into their private life, since an employee is contractually obliged to report for work at their workplace and cannot avoid being filmed. Article 8 was therefore triggered. Weighing up the balance for the employer too, the court noted that the covert surveillance was carried out in the context of an arguable suspicion of theft, which did warrant an investigation.

On the other hand, the use of covert surveillance contravened data protection law and guidance issued by the Spanish data protection agency, similar to the Information Commissioner’s Office in the UK. Namely, MSA did not inform the employees that surveillance cameras had been installed focusing on the cash desks, or of their rights under the data protection legislation in advance of doing so.

This case surrounds a very real issue across all industries internationally. It provides further guidance on a subject that is becoming more prevalent in the workplace today, namely the use of CCTV and to what extent its use is permitted. While this decision may appear harsh from the employer’s point of view, the case gives direction alongside previous cases with similar circumstances.

There are other cases that found the use of CCTV to detect theft in the workplace was justified. The distinction there was that only a particular employee under suspicion was targeted by the surveillance and the surveillance had been carried out over a limited period (two weeks) which only covered the area surrounding the cash desk. Both cases involved dishonest employees who were dismissed on the basis of covert video surveillance which showed them stealing from their employer, yet the decision differed.

Theft or any other dishonest conduct capable of being proven on CCTV could be relevant to your business and the subtle differences between the employer’s actions in the two cases give a good indication of where the line is to be drawn between protecting an employer’s interests and respecting employee’s private life under Article 8.

A more time-limited approach means a court is likely to find that any intrusion into an employees’ privacy is necessary. It is important to be wary of the level and extent of using CCTV in the workplace. In-cab cameras are more commonly utilised for employee driver protection during duty as well as for proving any misconduct alleged against a driver. Ordinarily, drivers would be aware of the CCTV in operation and consent to the same.

Does your in-cab CCTV have audio recording too?
Do you know whether this is enabled in the cab? This should be investigated as use of audio recording is unlikely to be justified, running continuously to monitor staff without a specific purpose, having regard for the UK guidance published by the Information Commissioner’s Office. Similarly, the ICO states that it will be rare for covert monitoring of employees to be justified and that it should only be done in exceptional circumstances.

It is therefore essential that employers make a realistic assessment of whether such action is required and necessary. If CCTV monitoring is being considered in any capacity within business, advice is recommended to be sought beforehand as even the most simple of cases prove to give varying decisions. Employers should have a strict policy that covert video surveillance will only be carried out in highly exceptional circumstances where the employer reasonably believes that there is no less intrusive way of dealing with a specific issue and this should be carried out for the shortest possible period and affect as few individuals as possible.

Please remember this article does not constitute legal advice. For more information why not sign up for this very educational newsletter? You can download at http://www.backhousejones.co.uk/resources/publications/