Hidden cameras as evidence for dismissal?

Facts
Decision
Comment

The European Court of Human Rights recently ruled that the installation of hidden surveillance cameras by a Spanish company without informing its employees infringed Article 8 of the Convention of Human Rights and Fundamental Freedoms (employees' right to respect for privacy and human dignity).

Facts

In this case, the European Court of Human Rights analysed whether video surveillance in a supermarket for the purpose of investigating recent robberies was lawful.

In order to investigate and put an end to the economic losses (the company had identified losses in excess of €82,310 over the past five months), on June 15 2009 the employer installed surveillance cameras consisting of both visible and hidden cameras. The employees were informed only of the installation of visible cameras.

As a result of the evidence obtained from the hidden cameras, the company dismissed five employees on disciplinary grounds; they had been caught on video helping co-workers and customers steal items and stealing items themselves.

In particular, the dismissal letters described how the security cameras had caught the employees scanning items from the grocery baskets of customers and co-workers and afterwards cancelling the purchases. The security cameras had also caught the employees allowing customers and co-workers to leave the store with merchandise that had not been paid for.

In relation to such dismissals, the company, in a meeting with all five employees, offered them a settlement agreement under which the employees agreed not to bring proceedings against the company for unfair dismissal, while the employer agreed not to bring criminal charges against them for theft.

Two of the five employees refused to sign the settlement agreement and they were eventually dismissed. Their dismissals were declared fair by the labour court and afterwards by the High Court of Justice.

The remaining employees signed the settlement agreement and later filed a lawsuit against the company, arguing that they had been induced to sign the settlement agreements due to the company's threat of starting criminal actions for the robberies. All of the lawsuits were dismissed as they had already signed a settlement agreement.

All of the employees filed a claim before the European Court of Human Rights against the Spanish government, arguing that the covert video surveillance ordered by the company without previously informing them had violated their right to privacy protected by Article 8 of the Convention of Human Rights and Fundamental Freedoms, as well as their right to a fair judgment protected by Article 6 of the convection.

Decision

In relation to this case, the European Court of Human Rights ruled as follows:

• There was an infringement of Article 8 of the convention – employees' right to privacy and human dignity – in accordance with the provisions foreseen in the Spanish data protection law. To have avoided violating this article, the company should have informed the workers in advance of the installation of the hidden surveillance cameras.
• There was no infringement of Article 6 of the convention since the judgment dismissing the two employees was declared fair, as it relied not only on the video recording, but also witness statements.
• Finally, in relation to the employees who claimed that they had been pressured to sign the final settlement agreement due to the company's threat of undertaking criminal actions, the European Court of Human Rights ruled that their consent was valid.

Comment

As a result of this ruling, if employers want to adopt disciplinary measures using surveillance cameras, they should always inform employees of the installation of surveillance cameras in order to avoid a potential judgment which could rule that the employees' rights in respect of privacy and human dignity have been infringed and, depending on the circumstances, that their dismissal was unfair.

Therefore, before installing hidden surveillance cameras, companies must analyse all of the applicable circumstances.

For further information on this topic please contact César Navarro or Francisco Artacho Sánchez at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (cesar.navarro@cms-asl.com or francisco.artacho@cms-asl.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.