In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
The issue of surveillance at work is becoming increasingly complicated; employers are having to walk a fine line between protecting their interests whilst also ensuring that they are not breaching their employees’ rights.
The rights that most often come into conflict are the employer’s property rights and an employee’s right to privacy (i.e. Article 8 of the European Convention on Human Rights).
There have been two recent cases that have dealt with the question of whether the use of surveillance equipment at work breaches an employee’s Article 8 rights - Antovic and Mirkovic v Montenegro (Application no. 70838/13) and Lopez Ribalda & Ors v Spain (Application nos. 1874/13 and 8567/13).
Antovic and Mirkovic v Montenegro (Decision: No breach of Article 8 rights)
In this case, the employer installed surveillance equipment in university auditoriums where they held classes. The equipment itself did not record audio and only provided a picture from a distance without clear resolution. People’s features could not be easily recognised, and there was no zoom feature. The university told their employees about the surveillance installation and that it was to ensure the safety of property and people, and for the surveillance of teaching. The collected data was protected by codes known only to the Dean of the University and was to be stored for up to 1 year (although in practice this was only 30 days).
Two employees challenged the use of surveillance equipment; firstly by making a complaint to the Personal Data Protection Agency and then in civil proceedings on a number of grounds including:
- There was a collection of data without their consent; and
- The reasons given for the installation, namely to ensure the safety of property and people and for the surveillance of teaching were inadequate as:
- There was unlikely to be any theft in the areas where equipment was installed due to rooms being locked before and after classes and there being no easily removable equipment or furniture in those areas; and
- They knew of no reason to fear for anybody’s safety; and
- There were other methods available for protecting people and property, and monitoring classes.
- They were not notified in writing when the video surveillance was introduced.
The Personal Data Protection Agency investigated the complaints and ultimately directed that the university should remove surveillance equipment as they had not been able to produce any evidence to support their reasons for installing the surveillance equipment, namely that there was a danger to the safety of people and property in the auditoriums.
The university removed the surveillance equipment, however, the employees continued to pursue a claim for breach of their Article 8 rights.
The Court of First Instance found that there had been no breach of the employee’s Article 8 rights. The Court of First Instance held that the university was a public institution performing activities in the public interest, teaching being one of them, and so it was not possible for video surveillance in the auditoriums, as public places, to violate an employee’s right to privacy, and, as they were never alone, the data collected could not be considered personal data.
The employees appealed the decision of the Court of First Instance to the High Court. The High Court endorsed the decision and reasoning of the Court of First Instance.
Lopez Ribalda & Ors v Spain (Decision: Breach of Article 8 rights)
In this case, the employer installed surveillance equipment in a supermarket store after discovering that there were irregularities between stock levels and sales.
There were visible cameras pointed towards the entrances and exits to record possible customer thefts, and there were hidden cameras zoomed in on checkout counters to record possible employee thefts. Employees were notified of the visible cameras and their purpose, however, they were not informed of the hidden cameras.
The data recorded by the hidden cameras was then used as evidence to justify the dismissal of a number of employees.
The domestic courts found the employee’s Article 8 rights had not been breached. They found that the installation of the surveillance equipment had been justified as there was a reasonable suspicion of theft. As such, the installation was appropriate, necessary and proportionate, since there had been no other equally effective means of protecting the employer’s rights that would have interfered less with the employees’ rights.
The employees appealed the decision to the European Court of Human Rights (ECHR). The ECHR found that there had been a breach of the employees’ Article 8 rights as the actions of the employer breached the Personal Data Protection Act. The ECHR also disagreed with the proportionality of the measures adopted by the employer in the protection of its property rights and observed that the employer could have used other means to protect their rights.
In both of these cases it was acknowledged that a person’s right to respect for private and family life, home and correspondence extends to the workplace. Although there are many differences between the two cases above, it is clear that the outcomes of both cases turn on the collection, use, control and retention of personal data.
Therefore, when it comes to interpreting employer and employee rights regarding privacy at work consideration must be given to the relevant data protection principles. The Data Protection Act 1994 currently contains the data protection principles in the UK. However, the General Data Protection Regulations (GDPR) will come into force in May 2018 and replace the Data Protection Act 1994.
Employers who employ the use of surveillance equipment or are considering using surveillance equipment, need to be careful that they are fully compliant with the relevant data protection principles or they may leave themselves vulnerable to claims of this nature.
For more information
We have advised a significant number of clients on privacy at work matters. If you require assistance with your working arrangements, please get in touch with your usual contact in our Employment Team or speak to Meena Lekhi in our Data Protection team. You can find out more about our employment and data protection work on our website.
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