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Employment Claims Employment Law Procedures and Policies

Hidden Cameras in the Workplace-European Court of Human Rights Approves in Certain Circumstances

Are you concerned about the use of cameras in the workplace? Hidden cameras?

If you are a recent European Court of Human Rights decision will disappoint and dismay you.

The case López Ribalda and others v Spain was an appeal from decision of the lower Chamber that the Convention for the Protection of Human Rights and Fundamental Freedoms had been breached.

Article 8 of the Convention provides for respect for the person’s private and family life:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In this Spanish case five workers had brought a case to Europe that their right to privacy was breached when they discovered there was hidden surveillance cameras in their shop.

The footage gathered by the covert cameras formed the basis for the dismissal of the employees due to losses and theft in the business.

The European Court of Human Rights decided that the rights of the workers were not breached and there was “weighty justification” for the use of the hidden cameras.

The Court also stated that it was for individual states to decide on laws, if any, covering the topic of video surveillance in the workplace.

The legal principles involving video surveillance in the workplace

The court said that the principles set out in the Barbulescu v Romania case were the correct principles to apply when it came to video surveillance. These principles involve 6 questions:

  1. Has the employee been notified of the video surveillance?
  2. What is the extent of the monitoring?
  3. Are there legitimate reasons for the cameras?
  4. Are there less intrusive ways of achieving the employer’s legitimate objective?
  5. What are the consequences of monitoring the employee?
  6. Are there safeguards for the employee?

In the López Ribalda and others v Spain case the monitoring of the employees was at an area of the shop where the general public was being monitored-the checkout area-and it was not unreasonable to monitor such an area where the employee’s expectation of privacy would not be the same as, for example, in toilets or employee’s locker areas.

It was also noted that the surveillance only lasted 10 days and ceased as soon as the objective was achieved-this was to identify which employees were responsible for the theft and losses occurring.

It was accepted by the Spanish court, and the European court of human rights, that it would have defeated the purpose of the surveillance if the employees were advised about it in advance. Therefor the right of the employee to be told must be counterbalanced by the legitimate objective of the employer to find out who is responsible for theft.

The Court also decided that this right to be told was only one factor when the decision had to be made about the proportionality of the employer’s action was to be assessed.

Takeaway

  1. The employee’s right to privacy in the workplace is not absolute
  2. The employer’s action must be viewed in the light of the specific facts of the case and whether the steps taken by the employer were in pursuit of a legitimate aim and were necessary and proportionate.
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Data Protection

Employees’ Privacy in the Workplace-Interesting Decision of the European Court of Human Rights

employee privacy rights

An interesting case came before the the European Court of Human Rights in September, 2017. The case was the Barbulescu case and concerns the extent to which employees are entitled to privacy in the workplace.

Factual Background

Mr. Barbulescu was a Romanian engineer. His employer asked him to set up an instant messaging account for work purposes. However, Mr. Barbulescu used it for personal reasons, too, and contacted his fiancée and brother regularly.

The employer monitored his message activity and, ultimately, dismissed him on the grounds of using company resources for personal purposes. Barbulescu felt this was a breach of his privacy rights in contravention of the European Convention on Human Rights.

The employee exhausted his claim in his domestic courts and the case eventually came before the European Court of Human Rights.

European Court of Human Rights Judgment

The European Court of Human Rights (ECtHR) recognised the difficulty in balancing the rights of the employee to privacy in accordance with the European Convention on Human Rights and the employer’s right to safeguard its legitimate interests. In this case it involved relying on the messaging records to prove a breach of the company’s internal regulations and policies, a disciplinary issue.

The Chamber of the ECtHR decided that the Romanian courts had struck a fair balance between these competing rights and held in favour of the employer insofar as it was reasonable for the employer to be able to rely on the employee’s assurance that the messaging service was only being used for professional purposes.

Appeal to Grand Chamber of the European Court of Human Rights (ECtHR)

Barbulescu appealed this decision to the Grand Chamber of the European Court of Human Rights (ECtHR). It overturned the Chamber’s decision and held that in deciding between the competing rights of the employee and employer vis a vis privacy of the employee and legitimate interests of the employer to monitor communications in the workplace the following factors need to be considered:

  1. Was the employee put on prior notice of the monitoring activity?
  2. Regard must be had to the depth and breadth of monitoring; ascertaining how much personal communication is one thing, reading personal messages a different matter
  3. Had the employer legitimate reasons for monitoring the communications?
  4. Was there a less intrusive method of achieving the same result?
  5. What are the consequences and impact of the monitoring?

Employers-what to do now

Review your existing policies on monitoring employees’ communications. The monitoring policy should not be unrestricted and should be explained to employees.

This explanation should include the type and scope of monitoring which is being carried out, why the monitoring is necessary, the consequences of the data gathering, for example will it be used in disciplinary proceedings leading to dismissal.

This European Court of Human Rights (ECHR) decision is not binding on Irish Courts or the WRC or Labour Court, but will almost certainly have strong persuasive impact.

Here’s the full decision in Barbulescu v Romania, from the Grand Chamber of the European Court of Human Rights (ECtHR).