In October 2019, the European Court of Human Rights (ECHR) issued a key judgment in Lopez Ribalda v. Spain refining the rules on video surveillance in the workplace and hidden monitoring of employees.
The Grand Chamber of the ECHR concluded that surveillance of workers using hidden video cameras can be valid but will not be justified if there is just a slight suspicion that an employee has committed a crime or act of serious misconduct. Hidden video surveillance is allowed only when there is reasonable suspicion that serious misconduct or a crime has been committed, causing significant harm to the employer.
Employers must inform workers in advance if they are going to be subject to video surveillance. This is a necessary guarantee to preserve the right of privacy.
The exception established to this rule applies only when there are well-founded indications of serious illegal acts committed by employees and no less-intrusive alternatives exist to achieve the desired result. Hidden surveillance will not be valid if there is a minor suspicion of wrongdoing committed by employees.
In light of Ribalda, the first part of this series of articles sets out the current state of the law on covert video surveillance in western Europe. The second part will cover video surveillance in eastern and northern Europe, and the final part will analyze video surveillance outside the European Union.
In France, the Ribalda decision would be questionable. The French Supreme Court and the French Data Protection Authority (the CNIL) have a strict position on the obligation to inform employees when using a video surveillance device.
The French Supreme Court considers that, in the absence of prior information, videos recorded from such devices are illegal evidence before employment courts and may not be used to justify disciplinary sanctions, such as a dismissal. In June 2019, the CNIL imposed a penalty of 20,000 euros—approximately $21,585—on a company that had set up a video surveillance system placing its employees under constant surveillance, without any notice provided to them.
German labor courts have had to decide cases of covert video surveillance in supermarkets over the last few years that are very similar to Ribalda. The criteria for acceptable surveillance are similar—such as the information provided to data subjects and weighing of the intensity and legal purpose of the surveillance. In addition, German courts point out that covert video surveillance must be the last resort.
Remote monitoring of employees in Italy is subject to specific legislation that requires the employer to enter into an agreement with the works council or to obtain an authorization before installing cameras.
According to Dutch case law, the Ribalda decision does not come as a surprise. In the Netherlands, hidden camera surveillance of employees is permitted if there is a concrete and demonstrable suspicion of any criminal offense, if it has turned out to be impossible to stop this without the use of cameras, if the surveillance occurs only occasionally and provided that the employees are informed about the outcome of the surveillance afterward.
It is striking that in Ribalda, no damages based on Article 82 of the General Data Protection Regulation (GDPR) were claimed by the employees who were dismissed. There are a few cases in the Netherlands in which the court has mentioned the possibility of remedies under Article 82 of the GDPR,
notwithstanding a valid dismissal of an employee. It is going to be interesting to see what the Dutch courts would do with this type of GDPR-based claim.
In Spain, employers are allowed to install hidden video surveillance only when there is reasonable suspicion that a serious infringement has been committed with significant harm to the organization. This does not mean employers are free to use hidden cameras indiscriminately to control work performance or protect the organization's assets. Spanish law establishes an obligation to inform workers in advance if employees are going to be subject to video surveillance, unless there are well-founded indications of serious illegal acts and no less-intrusive alternatives exist.
The United Kingdom has more of a culture of employee monitoring compared to some other European jurisdictions. But that is not to say that monitoring may be undertaken without restriction. The "right to private life" applies in U.K. workplaces under Article 8 of the European Convention and under the U.K. Human Rights Act 1998, which incorporates this right into U.K. law. While not technically binding, this judgment must be taken into account by U.K. domestic courts determining questions on the right to private life. As in Spain, the right to privacy in the U.K. is a qualified right—as opposed to an absolute right—meaning that it may be infringed when it is necessary and proportionate to do so.
The online link to the article can be found here.
Reprinted with permission from SHRM.org. c 2020. All rights reserved.