Covert Surveillance and Privacy Rights

One of the most difficult issues for a family-owned business to deal with is making sure that family members are treated the same as other employees when they may have done something wrong.  Consistency is key if unfair dismissal claims are to be avoided.

The business must also make sure that it does not breach its employees’ human rights if it needs to carry out covert surveillance – as if it does, and dismisses an employee on the back of that evidence, the business might not be able to use that evidence when defending an unfair dismissal claim.

In the case (López Ribalda and others v Spain), a supermarket manager noticed inconsistencies between stock levels and sales figures. The manager installed CCTV cameras, some visible and others hidden, and told the employees about the installation of the (visible) cameras, saying that they had been installed because of the management’s suspicions about thefts.

Shortly after the installation of the cameras, the CCTV footage from some of the covert cameras showed evidence of theft by employees, and they were dismissed.

To the employer, these acts constituted a serious breach of the obligations of good faith and loyalty required in the employer/employee relationship, and justified the employees’ dismissals.

The employees brought claims of unfair dismissal, and said that the covert surveillance should not be used in evidence against them as it had breached their right to privacy.

The ECHR said that whether obtaining evidence covertly amounted to a breach of Article 8 in any given case will depend on a number of factors, including:

• whether the employees were notified of the possibility of surveillance measures being taken;
• the extent of the surveillance by the employer and the degree of intrusion into the employee’s privacy;
• whether the employer has provided legitimate reasons to justify covert surveillance and the extent of it;
• whether it would have been possible to set up a surveillance system based on less intrusive methods and measures;
• the consequences of the surveillance for the employee subjected to it; and
• whether the employee has been provided with appropriate safeguards, especially where the employer’s surveillance operations are of an intrusive nature.

This means that family businesses can still use covert monitoring in certain limited circumstances, but should take advice first so that the risk can be properly assessed in each case – and family employees and non-family employees should be treated the same.

For further information please contact Keeley Parkes on k.parkes@ashfords.co.uk.