Contrasting judgments of two, recent, Spanish cases show that surveillance of employees in the workplace is an evolving and sometimes uncertain topic.
The first case concerned an employee of a company in Pamplona (Case 875/2018), Ángel Jesús, whose employer had installed CCTV cameras in the workplace car park. After a day’s work, he was recorded instigating a violent altercation with a colleague, lashing him with a whip before his colleague responded by hitting him with his motorcycle helmet. A fistfight ensued and continued until another colleague separated the two men.
Ángel was dismissed from his job and he appealed. The admissibility of the video evidence was determined at Pamplona Employment Tribunal No. 3 (the ET) by considering three tests.
The test from Spanish case law for determining the validity of video evidence includes that:
“The employer must fulfil its requirements to provide prior information concerning the installation of the surveillance system (although not its exact purpose) by installing informative signs (…)”.
This is different from the relevant part of the test derived from European Court of Human Rights (ECtHR) case law which has a stricter and more detailed obligation on the employer to inform the employee, including that:
“The employer must fulfil their duty to provide information on the installation of such systems by specifically, accurately and unequivocally notifying employees of the existence of CCTV systems and the reason for their installation”.
The ET also pointed out a further duty on an employer from the General Data Protection Regulation (GDPR), which also applies to recorded video data:
“…to inform data subjects prior to the processing of data”.
The employer had put signs up informing employees of the presence of CCTV which may have fulfilled the Spanish case law test at a stretch, but not the remaining two tests. These two tests, being European law, take precedence over domestic law and therefore the ET ruled that the video evidence was inadmissible due to the failure of the employer to fulfil its informing obligations.
In spite of the lack of admissible video evidence, whip-wielding Ángel’s dismissal was upheld thanks to witness testimony.
The second case concerned a group of supermarket employees (López Ribalda and Others v. Spain). Stock and cash discrepancies had reached €24000 over the course of a month and the manager investigated using hidden cameras pointed at the tills. Five employees were found to be part of a concerted effort to steal goods and cash or allow customers to leave without payment.
It was submitted that the staff should have been prior informed of the CCTV installation (as in our first case). However, the High Court disagreed and said that it was an appropriate and proportionate means of monitoring in light of the reasonable suspicion of serious misconduct and the size of the loss, and that:
“…the company rightly feared that knowledge of the monitoring system would defeat its purpose”.
The case ultimately reached the Grand Chamber of the ECtHR and came before 17 judges who considered whether the employees’ right to private life under Article 8 of the European Convention on Human Rights (the Convention) had been breached by the covert surveillance. The question of a Convention breach tends to be one of balancing the rights of different parties, and in this case it was balancing the right of the supermarket manager to investigate where there was reasonable suspicion, and the right of the employees not be observed without their knowledge.
The Court found in the supermarket’s favour and that the intrusion into the employees’ privacy was not sufficiently serious. They took a number of factors into consideration, including:
- the level of privacy expected at a supermarket till is lower than somewhere inaccessible to colleagues or the public, e.g. a private changing room;
- the surveillance was for just 10 days and shown to a limited number of people;
- only the tills were under covert surveillance; and
- there was reasonable suspicion of serious misconduct and substantial extent of losses.
If you have installed CCTV in your workplace, employees must be informed of it. Displaying signs to show the locations of cameras is typical, and should contain the purpose of the surveillance and the person to contact in regard to it. Important to note is that the reason for a camera is the only reason for which you may process the resultant data. For example, if the reason given is for preventing theft, then it cannot be used for something else such as recording entry and exit.
Covert monitoring without the consent of employees should be very rarely necessary. Any reason for it must be genuine such as reasonable suspicion of criminal activity or malpractice. Such monitoring should be obtained as quickly as possible and as part of a specific investigation.
Finally, remember to ensure you are practising what you preach and treating CCTV data according to your data policy.
If you need any advice on workplace CCTV monitoring, data protection, or any workplace issues raised in the article, please do not hesitate to contact the employment team on 01322 623700.
Further guidance on workplace CCTV monitoring can be found here:
ACAS: Being monitored at work
ICO: In the picture: A data protection