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ECtHR rules on monitoring employees suspected of theft

BY Gerry O'Hare
Employment Law & HR

Keen readers of LAWmail will remember LAW’s report on the European Court of Human Rights’ (ECtHR) ruling that employers must inform employees that their workplace communications may be monitored. Employees’ right to a private life is protected by Article 8 of the European Convention on Human Rights, and the recent case of López Ribalda and others v Spain has illustrated that this right is protected even when employees are suspected of stealing.

López Ribalda is the sort of case you’ll see reported in a right-wing tabloid under the headline ‘EU Rules in Favour of Thieving Employees!’. In the less sensationalist LAW interpretation, the ruling follows the thread from previous judgements and should again emphasise to employers their responsibility to protect their employees’ privacy.

Ms López Ribalda was one of five cashiers dismissed by the supermarket chain MSA after being caught on video stealing. Their manager had noticed major stock discrepancies, up to the tune of €20,000 per month, and had installed visible cameras to detect possible customer thefts. On top of this, concealed cameras were also installed to monitor whether employees had been lifting stock – and these cameras were not declared to employees or the staff committee, despite Spanish law mandating that they should have been.

The cashiers’ claim of unfair dismissal was rejected. On appeal, the High Court of Catalonia ruled that, despite lack of prior notice, the surveillance of employees was lawful and proportional given the reasonable suspicion of theft. The cashiers subsequently brought a claim before the ECtHR against Spain, complaining that the reliance on the footage to reject their claims breached their Article 8 right to a private life, given that they were contractually bound to work, which thus ensured that all employees’ interactions were monitored without their consent.

Perhaps surprisingly (though not to anyone reading LAWmail!) the ECtHR ruled that the cashiers’ right to privacy had been infringed and that the Spanish courts had not struck a fair balance between the rights of the employees and MSA. The ECtHR appreciated that an investigation into the theft had been warranted, but looked poorly on the surreptitious surveillance and the contravention of Spanish law. Furthermore, the fact that all employees were recorded for unlimited periods over multiple weeks evidenced a general suspicion of staff, and that MSA were prepared to infringe all their employees’ right to a private life to protect their own property rights. The ECtHR therefore ruled against the Spanish courts’ finding of the surveillance being justified and proportional to the employers’ property interests.

Where does this ruling leave UK employers? As everyone reading this should hopefully be aware, covertly monitoring employees is rarely justified. But even in the exceptional cases where it is justified, it is evident that unfettered monitoring may still be a violation of employees’ privacy. Any monitoring should, wherever possible, be targeted at only those individuals under investigation, and even then only for the shortest period possible.

LAW suggests transparency to employers. Endeavour to keep employees in the loop about any monitoring – and, of course, employers should consult a member of our Employment Law team if ever they believe monitoring employees is necessary. 

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