Hiding behind the right to a private life

Hiding behind the right to a private life

In a case looking at the balance between the Right to a Private Life, and the right of an employer to use hidden cameras to catch an employee stealing, the European Court of Human Rights has ruled that it did not breach the individual’s right to a private life if an employer used hidden cameras to record activity.

In this case, which resulted in dismissal, an employer suspected that an employee (or group of employees) was stealing from the employer, a supermarket.  The employer therefore set up secret covert cameras to record the employees’ activity.  The cameras caught the employees stealing and dismissal was the result.

The employees sued the employer, for among other things, breaching his Article 8 civil rights (the right to a private life). The claim was effectively that the covert recording of the employees somehow removed the private life of the employee.

In an interesting judgement, with a flourish of common sense, the Grand Chamber of the European Court of Human Rights (ECHR) ruled that this was not a breach. In coming to that conclusion, it took into account the fact that the employer had a reason for setting up recording, that the recording was limited to a two week period only (and so was proportionate) and, that the employees’ right to privacy when in a supermarket was not really impinged upon (it being a supermarket and very public).

This supports previous cases in the UK, although is perhaps less extreme than the ones in the UK; one such case ruled that a public toilet was a public place and so limited the right of privacy!  The judges clearly have a different view of privacy than the author of this article.

The trend appears to be that the courts are reluctant to allow wrongdoers to hide behind civil rights legislation.

It is however, important for employers to note that not all of the judges agreed with the final verdict. Three of the judges still emphasised the need for sufficient legal safeguards to be in place for those whose personal data will be collected and used for purposes that they are not aware of. They made an interesting point that, given the growing influence and control that technology has in our society, there is a need at national level for legislation to be clearer in relation to cases concerning electronic surveillance. Employers should, for want of a better phrase, watch this space for further developments in this area, particularly in an employment law context.

The case is called López Ribalda and others v Spain (2019) and the full judgment of the ECHR can be found here .