MOrsel: Covert Monitoring
19 December 2019
In Guernsey, the Human Rights (Bailiwick of Guernsey) Law, 2000, came into force on 1 September 2006. In Jersey, the Human Rights (Jersey) Law 2000 came into force on 10 December 2006. Both laws make it unlawful for a public authority (which includes a court or tribunal) to act in a way which is incompatible with the rights set out in the European Convention on Human Rights. Therefore, whilst the laws do not provide private individuals with direct rights, a Court or Tribunal must consider the Convention rights and ensure any decisions are not incompatible with those rights.
One such right is the right to respect for private and family life under Article 8 of the European Convention on Human Rights.
Will this right prevent employers from using covert surveillance to monitor employees under suspicion of theft?
In the case of in López Ribalda and others v Spain, the European Court of Human Rights (ECHR) said not. In this case, five supermarket cashiers were dismissed after CCTV cameras captured them stealing. The cameras were installed to investigate large stock discrepancies.
The employees complained before the ECHR that the use of the CCTV footage in their unfair dismissal proceedings had breached their right to privacy under Article 8.
A chamber of the ECHR upheld the employee's claims, but having been referred to the Grand Chamber, 14 out of 17 held that there was no violation of the Article 8 right to respect for private and family life where covert video surveillance had been installed in a Spanish supermarket where there was a high level of theft. The recordings were circulated to a small number of individuals and the surveillance lasted only two weeks. The employees were not informed in advance that they would be recorded.
The ECHR held that not being informed of the recording did not violate the employees' Article 8 right to respect for private and family life. It found that there was a limited expectation of privacy at work on a supermarket floor and the employer had taken steps to confine the circulation of recordings. The intrusion was therefore proportionate and fair.
Employees in an office environment will likely have a higher expectation of privacy. Therefore, care must be taken when undertaking any covert surveillance. Before arranging covert surveillance, employers should:
1. Ensure that there is a genuine requirement for the surveillance and keep records of the reasons for the surveillance;
2. Keep records of the decision leading to surveillance, including consideration of lesser measures and how the surveillance can be limited to a short time period and circulated to only a small number of people;
3. Monitor only the public areas within the office;
4. Limit the recordings only to the "at risk area";
5. Include reference to covert surveillance within the staff handbook where possible (this will obviously involve some forward planning);
6. Ensure that surveillance recordings are kept only for as long as required;
7. Ensure that surveillance is only carried out over a short time period to resolve the problem; and
8. Ensure that the surveillance recordings are circulated to and viewed by only a small number of people.