Covert Monitoring Of Employees And The Right To Privacy Under Article 8 ECHR: Can These Two Be Reconciled?

Author:Mr Séamus Given, Sally Doyle and Niamh Fennelly
Profession:Arthur Cox

It is generally accepted that the monitoring of employees at work is intrusive. Employees have a legitimate expectation that they can keep their personal lives private and that they are also entitled to a degree of privacy in their work environment. While there has been much said about the data privacy protections in the General Data Protection Regulation (GDPR), employees' privacy has long had protection in the Irish Constitution and the European Convention on Human Rights (ECHR).

Two recent European Court of Human Rights decisions examine employers' monitoring of employees in the context of the Article 8 right to a private life.

Ribalda & Ors v Spain (2018)

In this case, five applicants - supermarket cashiers accused of theft - argued that the covert video surveillance ordered by their employer without previously informing them had violated their right to privacy under Article 8 of the ECHR. The Court observed that although the employer had given the workers notice of the installation of visible cameras, other cameras had also been installed which were hidden, and the workers were not informed of those.

The Court took account of the following factors in reaching its decision:

a number of people had seen the footage before the applicants, including their union representative and the employer's lawyer; the workers had not been told of, or consented to, the covert surveillance of them; and the footage had been taken over a number of weeks, at all hours and had captured images of workers other than those suspected of theft. The following passage from the judgment is of particular interest:

"Furthermore, in the present case and unlike in Köpke, the covert video surveillance did not follow a prior substantiated suspicion against the applicants and was consequently not aimed at them specifically, but at all the staff working on the cash registers, over weeks, without any time limit and during all working hours. In Köpke the surveillance measure was limited in time - it was carried out for two weeks - and only two employees were targeted by the measure. In the present case, however, the decision to adopt surveillance measures was based on a general suspicion against all staff in view of the irregularities which had previously been revealed by the shop manager."

The Court concluded that the employer should have safeguarded its property (on the basis that it believed the applicants had been stealing from it) by other means which had less impact...

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