Does an employer have the right to install cameras to monitor its employees while they are at work? The ECHR had to rule on this question in a case where an employer had dismissed several employees after camera surveillance footage revealed they had been stealing part of the employer's sales proceeds. While the ECHR had initially ruled that the employees' right to respect for their private life had been violated, the Grand Chamber reversed the first judgment and declared camera surveillance to be admissible in this case.
In Spain, a supermarket manager found discrepancies between the level of stocks and the supermarket's sales proceeds. As part of an internal investigation, he installed surveillance cameras in the store, some of which were visible and others hidden. The hidden cameras were directed at the cash tills. Staff members had been informed of the installation of the visible cameras, but not of the hidden ones. A camera surveillance pictogram had been hung on the wall.
Ten days after the cameras were installed, the supermarket manager noticed product theft at the tills and dismissed the 14 employees who had been caught. Some of them turned to Spanish courts and eventually to the European Court of Human Rights ("ECHR"), arguing in particular that the camera surveillance had violated their privacy rights.
First ECHR decision: violation of the right to respect for private life
In a judgment of 9 January 2018, the ECHR ruled that the dismissed employees' right to respect for their private life had been violated. According to the ECHR, the camera surveillance had a very broad scope (not limited in time, covering all the employees working at the tills, permanent camera surveillance), and the employees had not been informed of it in advance.
The Spanish Government did not acquiesce with this decision. It requested and obtained a referral of the case to the Court's Grand Chamber. Such a referral is only possible when the case is considered to raise a serious question relating to the application or interpretation of the European Convention on Human Rights, or a serious question of general interest.
Decision of the Grand Chamber: No violation of the right to respect for private life
The Grand Chamber rendered its judgment on 17 October 2019. This time, a majority (14 out of 17 judges) of the Grand Chamber followed the Spanish Government's position that Article 8 of the Convention (right to respect for the individual's private life) had not been violated.
In the first place, the ECHR's judgment confirmed that the right to respect for the individual's private life is applicable in this case. Next, it examined whether the Spanish State had provided adequate and sufficient guarantees to protect the employees' right to respect for their private life in the case at hand.
The ECHR first recalled the circumstances in which an employer can set up a camera surveillance measure. The ECHR referred to its criteria on electronic surveillance in Bărbulescu v. Romania and applied them analogously in the case at hand (see Eubelius Spotlights September 2017).
The ECHR noted that the Spanish regulatory framework contains an obligation to inform the employees whenever a camera surveillance system is set up, but that the employer had not complied with this regulatory framework in the case at hand. Nevertheless, it also ruled that the employees' private life had not been violated by the camera surveillance for the following reasons:
- The camera surveillance system only targeted tills, the only place where a theft is likely to occur;
- The duration of the camera surveillance was limited (10 days) and did not exceed the time required to confirm the suspicions of theft;
- The employees' legitimate expectations in terms of privacy had been lowered, as they held a position (as cashiers) that requires constant interaction with the public; and
- The employees still had the opportunity to lodge an appeal and challenge the fact that they had not been informed about the camera surveillance.
Consequently, the ECHR ruled that the employees' right to a fair trial had not been violated, even though the evidence of the theft had been obtained illegally as the employees had not been informed about the camera surveillance. Other evidence of the theft had been assembled, and the employees did not challenge the authenticity of the camera footage. The ECHR therefore agreed with the Spanish State's point of view in all respects.
Any consequences for Belgian employers?
Camera surveillance of employees is strictly regulated in Belgium as well. The rules on the matter are set out in Collective Labour Agreement no. 68. Camera surveillance is only allowed to pursue certain objectives, it must be proportional, and the Works Council and the employees concerned must be informed about the camera surveillance.
In López Ribalda, the ECHR allows camera surveillance of employees, despite them not having been informed in advance. A similar case in Belgium would probably have led to the same conclusion, based on the Antigone case law, which allows unlawfully obtained evidence to be used, provided that it does not jeopardise the right to a fair trial.
To avoid any discussion, it is recommended that the employer should have a clear policy on camera surveillance in place.