09 Jan 2020

Employment

Covert Surveillance, following the correct protocol

Covert Surveillance, following the correct protocol. We are often asked to advise as to whether it is permissible to covertly record employees where dishonesty is suspected. Read below to find out what is viewed as acceptable

We are often asked to advise as to whether it is permissible to covertly record employees where dishonesty is suspected.  In the case of López Ribalda & Others v Spain, the European Court of Human Rights has overturned previous judgments, finding that workers’ privacy had not been violated, nor had there been any violation of the right to a fair trial, where a supermarket manager covertly filmed shop workers stealing.  In this particular case, a Spanish supermarket had identified substantial stock losses and as part of its investigation, had installed both visible and covert cameras to monitor the store’s employees.  Footage captured employees stealing from the store.  While the cashiers admitted the theft and were dismissed, they later brought unfair dismissal claims in the Spanish courts.  Before the ECHR, the claimants argued that, under Spanish law, they should have been informed of the surveillance.  Given the limited period of surveillance and the limited number of people that viewed the recordings, the ECHR took the view that it was proportional to conduct covert surveillance.

In this particular case, weight was given to the fact that there was both a reasonable suspicion of serious misconduct and very significant losses in the case.

Here in the UK, the Office of the Information Commissioner, indicates that covert monitoring should be the exception, rather than the norm.  Covert monitoring of employees needs to be justified and would normally only be lawful in exceptional circumstances, such as:-

  • a specific investigation into criminal activity;
  • the apprehension or prosecution of offenders.

Before undertaking any covert surveillance, an employer must conduct a privacy impact assessment and the surveillance must be approved by senior management.  Employers wishing to use video surveillance will be well advised to have a policy in place setting out how it might use CCTV monitoring, when it may be deployed and how the recordings are used.

It is clear that covert recording should only be used where there are real grounds to suspect serious misconduct.

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