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Employment Law Case Update: López Ribalda and others v Spain

May 24, 2018

Ms Lopez Ribalda and the four other applicants worked as cashiers at MSA, a Spanish supermarket chain. A manager noticed significant discrepancies between stock levels and what was supposedly being sold in store - in some months as much as €20,000. As part of an investigation, MSA placed concealed cameras behind the cash desks and did not inform the employees they were in place. MSA also installed visible cameras aimed at possible customer thefts. Ms Lopez Ribalda and her colleagues were caught on camera stealing items and helping customers steal items.

All the employees admitted their involvement and were dismissed. The domestic courts accepted that, in the circumstances, the covert recordings had been lawfully obtained even though no prior notice was given to the employees. The High Court found that the surveillance had been justified, since there had been reasonable suspicion of theft, necessary to achieve a legitimate aim.

The employees complained to the European Court of Human Rights (ECtHR) stating that:

  • The use of footage taken from the covert video surveillance in the unfair dismissal proceedings had breached their right to privacy under Article 8 of the European Convention on Human Rights (ECHR).
  • The use of the footage in their unfair dismissal proceedings had infringed their rights under Article 6 ECHR, which provides that “in determination of his civil rights and obligations… everyone is entitled to a fair… hearing… by [a] tribunal…”.

The ECtHR rejected the employees’ Article 6 claim, but found in their favour in relation to their claim under Article 8. The ECtHR had to examine whether the Spanish State had struck a fair balance between the rights of the employees’ to a private life, the employer’s interest in the protection of its property rights and the public interest in the administration of justice. Weighing up the evidence, the court noted the surveillance was carried out following a suspicion of theft which had warranted investigation – but that the use of covert surveillance contravened specific provisions of the Spanish data protection legislation as MSA had failed to inform the employees that surveillance cameras had been installed.

The Court drew parallels to another case Köpke v Germany, where covert video surveillance had been installed, but was found not to infringe on employees’ Article 8 rights. The reason was that the surveillance was limited to specific employees under suspicion of theft and had been carried out over a limited period of time. In the López case the surveillance was not targeted at certain individuals and carried out over a period of weeks without time limit, during all working hours. The slight differences in the cases of Köpke and López give a good indication of where the line is to be drawn between respecting an employee’s private life and protecting the employer’s interest. The Information Commissioner’s Office has published useful guidance which states that covert monitoring will only be justified in a particular case if openness would prejudice the prevention or detection of crime or equivalent malpractice, or prevent the apprehension or prosecution of offenders.

It is advisable that employers maintain a strict policy in regards to covert surveillance, stating that covert surveillance will only be carried out in exceptional circumstances where there is no less intrusive way of tackling the issue. Where covert monitoring is undertaken it should be done for the shortest period possible and affect as few individuals as possible.

This article is from our weekly Employment Law Newsletter published on 17/05/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.