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Ask About... Retail, Fashion and Hospitality

27 November 2019

Many of our clients in the retail, fashion and hospitality sector face similar HR issues. Each month one of the members of our team will identify an issue, consider how it should be dealt with and provide our advice. This month we asked Emma...

I’m head of HR at the supermarket chain Monstromart. I contacted you back in February 2018 when we wanted to set up hidden surveillance cameras throughout a particular store. At that time we’d identified some huge discrepancies between the stock levels of our more expensive craft beers and what was apparently being sold - in one week alone, the discrepancy was over £700, roughly the price of a few six-packs. Our security team had reviewed recordings from existing store surveillance cameras and couldn’t find any evidence of customers shoplifting .We were concerned that our employees were stealing the stock and so we wanted to set up additional, hidden cameras to get to the bottom of this. We didn’t want to tell the staff we were doing this, because we wanted to catch the wrongdoer and we thought this was the only way we could identify them and take action.

At the time, you told us about a recent decision in the European Court of Human Rights (“ECtHR”) in a Spanish case which suggested that it may be problematic for us to do this.  The decision indicated that it may be an invasion of the employees’ human right to privacy if they were not informed in advance that they were being filmed in these sorts of circumstances. You suggested that if we did not want to give specific notice of the filming, another option was to amend our policy to say that we may undertake targeted covert monitoring in certain circumstances.

In the end, we got a bit nervous so we didn’t set up hidden cameras or amend our policy as we did not want to stir up trouble. As it happened, the stock discrepancies seemed to stop anyway at around that time.

However, a colleague told me that the Spanish case was overturned recently. Does this mean that it’s OK for us to carry out covert filming of our employees as and when we want to?

A.  Yes that’s right. There’s now absolutely no issue at all with covert filming in the workplace. If someone is guilty of theft, they must be caught. If employees are innocent, they have nothing to fear. Nobody has a right to privacy in your shops, otherwise people would steal stuff left right and centre! You monitor your customers using surveillance cameras, so why wouldn’t you be allowed to monitor your employees as well?

B.  No, it’s not quite as simple as that.  Although in legal terms you have carte blanche to use surveillance cameras even without telling employees that you are doing so, on a moral level it feels a little bit “Big Brother” to do so. It could create employee relations issues if your employees get demoralised and/or angry if they find out you were covertly watching them and may complain about it even if they do not have any legal redress.

C.  No, it’s not quite as simple as that. Your employees have a right to privacy at work, but you also have a right to protect your business and not have your stock stolen. It’s not essential in all cases that you inform employees in advance about the filming but you need to find a balance between protecting your interests and the legitimate privacy rights of your employees. A number of factors may justify the surveillance, for example:  the extent of the monitoring and degree of intrusion, the level of privacy in the area to be filmed and the reason for the filming.

D.  No you can’t! Everyone has a right to privacy and this extends to employees having an absolute right to privacy in their workplace. Human rights cases have established that employees have a right to nurture their private social life while at work and this latest case backs this up. You are allowed to monitor customers, but you can’t monitor employees in any circumstances since the courts have said that is an unjustifiable abuse of your position over them.

The correct answer is C.

Under European human rights law, individuals have a right to respect for their private and family life. This has been extended through case law to the workplace, but the right is not an absolute one. As is normal where human rights are engaged, there must be a legitimate aim justifying interference with the right, the competing interests must be balanced in a proportionate manner and the interference must go no further than is necessary.

In Monstromart’s situation, the conflict is between respecting your employees’ privacy and your legitimate aim of protecting the business’s property rights. Some ways of achieving that balance may be to:

  • Inform the employees that they are being monitored.
  • Carry out the monitoring over a time-limited period.
  • Target particular individuals, rather than set up a blanket monitoring of all staff.

These principles flow from a string of European Court of Human Rights (“ECtHR”) cases over the last decade or so. The ECtHR judgment you refer to was decided in January 2018 in the Spanish case López Ribalda and others v Spain.

The situation in that case was similar to your own. A Spanish supermarket suspected stock was being stolen when it noted discrepancies between sales and stock levels. Surveillance cameras were installed to investigate whether the theft was by customers or staff. The cameras aimed at customers were visible, whereas those targeted at staff were concealed. The supermarket did not tell its staff about the hidden cameras, and employees were caught stealing items themselves and helping customers to steal items. The employees confessed and were dismissed.

The employees brought unfair dismissal claims. The Spanish courts upheld the action taken by the employer, finding that the surveillance was justified, necessary and proportionate even though the employees had not been given prior notice. The employees took their case to the ECtHR, contending that their privacy rights had been infringed. The ECtHR decided in favour of the employees and awarded damages, deciding that the Spanish courts had not struck a fair balance between the competing rights. They decided that the filming was not justified and breached Spanish data protection law. One of the key reasons for this was because the employees had not been notified in advance that the filming was taking place.

This case was appealed and heard by a Grand Chamber of the ECtHR which gave its judgment in October 2019 (López Ribalda and others v Spain). The Grand Chamber overturned the earlier judgment and decided that there was no infringement of the right to privacy. On the facts of this particular case, the ECtHR decided that the measures taken were necessary and proportionate. The fact that the employer had not informed the employees in advance that the filming was taking place was not determinative of whether the intrusion into the general right to privacy was proportionate. It was only one factor which should be taken into account. Other factors in this case which were relevant were: the fact that the employees could have limited expectation of privacy on the shop floor, the limited duration of the monitoring, the small number of people who were allowed to see the footage and the fact that telling staff in advance could have meant the employer would not have been able to catch the thieves.

The upshot of this for employers is that they do not have a green light to carry out covert monitoring of employees. Employers need to consider a number of factors to decide whether it could be justified.  For example:

  • Whether the employee has been notified of the possibility of video-surveillance (and whether this took place in advance).
  • The extent of the monitoring and degree of intrusion into employees’ privacy as well as the level of privacy which could be expected in the area monitored.
  • Whether there are legitimate reasons for the monitoring (the more intrusive the monitoring the more justification will be required).
  • Whether some kind of monitoring system could be used which is less intrusive.
  • The consequences of the monitoring on the affected employees.
  • Whether sufficient safeguards are in place (e.g. the provision of information to the employees or their representatives) about the installation and extent of monitoring. 

Employers should also consider guidance issued in the UK by the Information Commissioner’s Office (in the Employment practices data protection code, part 3.4).  This states that it will be rare for covert monitoring of employees to be justified and it should only be done in exceptional circumstances.

So, to summarise the answer to your question: No, you cannot assume that it is OK to carry out covert filming of your employees as and when you want to. You should read the ICO guidance on covert monitoring and also consider the other factors mentioned above – covert monitoring should only be carried out in exceptional circumstances where there are legitimate reasons, for short periods of time affecting as few individuals as possible and only if less intrusive options are not available. You should also make sure that your policy makes it clear that you may undertake covert filming, but only in certain exceptional circumstances.

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