LRD guides and handbook May 2019

Law at Work 2019 - the trade union guide to employment law

Chapter 15

Covert monitoring at work




[ch 15: pages 498-499]

The human right to respect for private and family life (Article 8, European Convention on Human Rights) is engaged whenever an employer conducts covert surveillance at work. Covert surveillance should only be used to investigate suspected serious misconduct, such as theft or fraud (McGowan v Scottish Water [2005] IRLR 167).




Article 8 is unlikely to be engaged if surveillance takes place in a public place where there is no reasonable expectation of privacy (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN). 


Covert surveillance is unlikely to infringe the human right to privacy if: 



• the employer can demonstrate a serious and legitimate purpose, usually the need to investigate suspected fraud or theft; 



• surveillance is time-limited, for example, just one week;





• surveillance is reactive, in other words, installed as a short-term response to legitimate suspicions of grave and serious misconduct such as suspected theft, as opposed to being permanently in situ waiting to catch people out;





• alternatives to covert surveillance have been considered;




• staff have been consulted in advance (through the union, where one is recognised); and





• staff have been clearly warned in advance that covert surveillance is a possibility, for example, with posters and written policies). 




The European Court of Human Rights (ECHR) has described covert video surveillance at work as a “considerable intrusion” into workers’ private life in this case: 



An employer installed secret cameras and trained them on supermarket check-out operators to investigate unexplained till losses. The cameras revealed theft by some workers who were dismissed. They brought claims for breach of privacy and the ECHR agreed. The workers were not warned of the possibility of surveillance, in clear breach of data protection laws. The surveillance was not time-limited. Instead it lasted for weeks, all day long, and was targeted at all staff, not just those eventually found guilty. In addition, the videos were examined by several people before the claimants found out about them. The store’s response, in particular its failure to provide clear advance warning of the possibility of surveillance, was disproportionate, ruled the ECHR. A fair balance was not struck between workers’ privacy rights under Article 8 and the employer’s right to protect its property. 



Lopez Ribalda & Others v Spain [2018] Application Nos. 1874/13 and 8567/13 



www.bailii.org/eu/cases/ECHR/2018/14.html

Part 3 of the ICO Employment Code of Practice contains guidance on covert surveillance at work. It says that covert monitoring can “rarely be justified” and must be authorised at the highest level. There must be reason to suspect criminal activity or equivalent malpractice which would be hard to prevent or detect if staff were warned in advance about the monitoring (Code, Para 3.4). The Code says that covert surveillance must not be used in places where people have a reasonable expectation of privacy such as changing rooms, toilets or rest rooms, save in exceptional circumstances.



Covert surveillance must also comply with the more stringent standards of the GDPR. In particular, employers must conduct a data protection impact assessment (also known as a privacy impact assessment) whenever data processing is “likely to result in a high risk to the rights and freedoms of natural persons” (Article 35(1), GDPR) and employers should consult data subjects or their representatives where appropriate. Records must be kept.



LRD Booklet: Monitoring and surveillance at work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1800)