Is the covert surveillance of employees under suspicion of theft a breach of their Human Rights?
No, according to the European Court of Human Rights.
In the case of López Ribalda and others v Spain the court held by a majority of 14 to 3 that no violation of the employees’ right to respect for their private and family life had occurred.
The case concerned a Spanish supermarket where there was a high level of theft. Initial investigations led to a small group of employees being suspected of theft and, as such, the employer installed covert recording equipment. The surveillance was limited to two weeks and the recordings were confined to the small group of individuals.
At the initial trial it was argued that the employer’s failure to inform the employees of the recoding in advance was a breach of their right to respect for private and family life and the matter was referred to the Grand Chamber of the ECHR. The ECHR held that employees should have a limited expectation of privacy at work on a supermarket floor. As the employer had taken steps to confine the circulation of the recordings it agreed with the decision of the Spanish courts; that a fair balance had been struck and the intrusion was proportionate.
It should be noted that three judges did not agree, on the basis that a fair balance had not been struck and that further safeguards were needed, particularly with regards to new technologies which make it all too easy to intrude and violate employees private and family life.
The case is welcome news for employers as it provides clear guidelines on the use and appropriateness of covert recording. Provided the reason for covert recording is substantial (here it was theft), correct safeguards are put in place, any covert surveillance can be justified, and is kept to a minimum, recording of employees is a lawful and legitimate investigative tool. However, care should be taken in its use as well as how widely any subsequent recordings are processed and disclosed.
As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Legal Ltd) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.