November 19, 2019

November 18, 2019

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Private investigations video doesn’t leave employer in dire straits (EU)

In January 2018 we wrote about Ribalda –v- Spain, a European Court of Human Rights case in which a number of supermarket employees were awarded compensation for breach of their privacy rights. They had been stealing quite handsomely from their employer over some months, as they freely admitted, but nonetheless thought it entirely improper that the supermarket should be allowed to use covert video footage of them to prove it [here].

The first chamber of the ECHR found that the installation of covert video surveillance without notice to the employees (as notionally required under Spanish law) amounted to a disproportionate interference with their rights under Article 8 of the European Convention (in summary, to respect for one’s private life), hence the compensation. One judge alone, Judge Dedov railed against this – the employees had lost their right to privacy when they decided to steal, he said, and so deserved everything they had got, which was sacked.

The matter then moved to the Grand Chamber of the ECHR which issued its decision last month. It sided with Judge Dedov in finding that the employees’ rights had not been infringed, but via a different route. Not once in over 160 paragraphs did any of the 17 judges query how the claimants could properly seek compensation for a privacy infringement the sole adverse consequence of which was that they had been caught stealing.

Instead the Grand Chamber concluded that there had been no breach of the Article 8 right. The surveillance had been a response proportionate in duration, scope and distribution to the scale of the thefts and the supermarket’s inability to determine by any other means which of its staff was stealing from it (quite a lot of them, as it turned out).

A shame about the Dedov argument because that seemed very sensible, but there were nonetheless some other useful points in the decision for any employer considering the use of covert surveillance.

  • When considering whether you have struck the right balance between the protection of your own rights as employer and those of your employee, remember that the courts may not necessarily take into (conscious) account the question of whether, with hindsight, justice has been done.

  • Your position will depend upon your purpose. If it is to defer future stealing then you would obviously tell your employees about the cameras, but if it is to identify the perpetrators of the past thefts, that will clearly not work. A minority of judges in the Grand Chambers considered that the appropriate course was for the supermarket to have gone to the police and not carry out private investigations of its own. This strikes me as somewhat naïve given the cash which it was haemorrhaging each month, the likely delay in the police response and their almost inevitable advice to the supermarket to set up some sort of covert video surveillance.

  • If video evidence is obtained in breach of relevant data protection rules, that will not generally stop it being admissible in evidence. Ribalda and her colleagues said that their right to a fair trial should entail the exclusion of evidence obtained in breach of Article 8. The Grand Chamber gave that very little air-time as an argument – there had been no breach of Article 8, but in any case the claimants had admitted the thefts and so the video evidence did not do them particular additional harm. The rights of individuals under Spanish law to challenge misuse of personal data/privacy issues via the domestic data protection agencies meant that the government had not failed to protect the claimants’ rights adequately.

  • Using covert surveillance on a whim would potentially be a breach of Article 8, but “the existence of reasonable suspicion that serious misconduct has been committed and the extent of the losses…. may constitute weighty justification“. However, it is not just the principle of covert surveillance which must be justified but also each aspect of it – its detailed focus, duration, operating hours, range (e.g. no audio unless it would prove something) and once obtained, its circulation.

  • The faintly hysterical view of the minority that this judgement allows “the unlimited use of covert video surveillance in the workplace” is obviously not correct. Even in a case as morally one-sided as this one, the Grand Chamber still required an employer to tread a very careful line between its interests and those of its employees. It is certainly not impossible that a UK employee whose thefts were pinged by unlawful surveillance could have something to say about it to the ICO. Whether the ICO would get far past a hollow laugh is a separate question, but as employer you should not bank on that.

© Copyright 2019 Squire Patton Boggs (US) LLP

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David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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