A recent case involving a Spanish supermarket installing covert surveillance to monitor employees suspected of stealing has provided some useful guidance for employers.

It was held, by a majority in the European Court of Human Rights, that the covert surveillance did not violate a person’s human right to respect for their private and family life. Whilst this case relates to a Spanish employer the findings are relevant to UK law.

When can you install covert surveillance?

• A strict policy should be maintained regarding the surveillance employers operate in their business. Covert surveillance should only be carried out in exceptional circumstances, where suspicions cannot be investigated in a less intrusive manner.  Covert surveillance should not be relied upon as an investigatory tactic.
   
• Any surveillance must be appropriate, necessary and a proportionate means to achieve a legitimate aim. Slight suspicion of wrongdoing is not enough to justify installing covert video-surveillance.
    
• Justification of surveillance will be fact specific. In this particular case, covert surveillance was justified as it rested on: a reasonable suspicion of serious misconduct; significant financial losses already sustained by the business; and suspicion of concerted action among employees.

What impact does covert surveillance have on your employees’ human rights?

• A fair balance must be struck between the rights of the employer to protect its business and the right to privacy of the employees. Covert surveillance should affect as few individuals as possible and should remain in place for no longer than necessary to investigate an issue. 
   
• Employees should have a limited expectation of privacy at work in public places (such as a supermarket shop floor), in contrast to private areas such as toilets and cloakrooms.
    
• In this case intrusion into the employees’ privacy was considered proportionate as: the covert surveillance only covered the shop floor; it only lasted 10 days; and only a limited number of people had viewed the recordings.  However, this case should not give employers the impression that covert monitoring is always acceptable – employers should have a carefully considered and well-reasoned justification before any covert monitoring is undertaken.

If you would like to discuss any of the issues covered in this e-alert (including this case, López Ribalda and others v Spain) or you would like us to review any relevant policies, please get in touch with your usual Stephenson Harwood contact.