19 January 2018
Covert surveillance at work was found to be in breach of the right to privacy and data protection law by the European Court of Human Rights(ECtHR) in Lopez Ribalda & Ors v Spain.
After suspected thefts, a supermarket installed visible and hidden cameras. Workers were told about the visible cameras but not the covert ones. Several employees were dismissed relying on covert images.
A Spanish court decided that the covert surveillance was lawful because no other equally effective means of protecting the employer's rights would have interfered less.
The ECtHR found that the covert surveillance was not a fair balance between the parties' rights so the workers’ right to privacy had been violated, noting that surveillance of this kind is intrusive and extends to personal appearance.
Employers might think that this does not apply to cases relying on telematic or mobile app data, which does not have a visual element. A typical case is where data shows that a worker has long unexplained periods of non-work during the working day.
However, the ECtHR also found that there had been a breach of data protection laws, and that employees must be "explicitly, precisely and unambiguously" informed of the existence of a personal data file, how data will be processed, the purpose for collection and the recipients of the data.
This could apply equally to telematic or mobile app data just as much as to video surveillance so it is crucial that employers have policies in place which both meet their needs and comply with their data protection obligations before using such data as the basis for disciplinary action.