The European Court of Human Rights by a majority ruled in the case of López Ribalda v Spain the use of covert surveillance by an employer amounted to a breach of the right to privacy under Article 8. However, no breach of the right to a fair under Article 6 flowed from that breach.
By way of background the case was initiated by five applicants who had been dismissed from their employment on suspicion of theft. The applicants had been employed by a Spanish supermarket. The employer noticed irregularities in stock levels and installed visible and hidden cameras as part of an ongoing investigation. Employees were not told about the hidden cameras and were not aware they were being filmed. The five applicants were discovered to be helping customers and other employees to steal merchandise from the shop, as well as stealing themselves.
They were then dismissed on disciplinary grounds, with three of the five applicants signing a settlement agreement acknowledging their involvement in the thefts and agreeing not to challenge their dismissal before the labour courts. However, all of the applicants ultimately went to court, where the dismissals were upheld by the Employment Tribunals and the High Court on appeal.
It was argued by the Spanish Government the State was not responsible for the actions of a private company; in this instance the supermarket. However, in its decision, the ECtHR observed that all signatory states had a positive obligation to ensure that citizens’ rights under the Convention are not breached. The court had to examine whether the State had struck a fair balance between the applicant’s and employer’s rights. Under Spanish data protection law individuals were to be clearly told about the storage and processing of personal data. The ECtHR found as matter of fact the applicants had not been given such warning. The domestic court found the measure was justifiable because there was no other way to provide sufficient protection for the employer’s property rights. The ECtHR disagreed with the proportionality of the measure and found the employer’s rights could have been given at least some protection by other means; for example the company could have provided the applicants with general information about the surveillance and given the notification required under the Spanish data protection legislation. This resulted in the violation of article 8 rights of the applicants.
The ECtHR then went on to examine whether the finding of a violation of article 8 rights resulted in a breach of the right to a fair trial under article 6. On balance the ECtHR found no violation had occurred. The applicants had been provided with an opportunity to challenge the authenticity of the recordings in the domestic court and the surveillance videos were supported by witness statements in arriving at the decision to dismiss the applicants for misconduct.
For a copy of the judgement please click here.