![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201805.jpg)
Covert monitoring at work
[ch 15: pages 479-481]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 (see Chapter 1, page 22). 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 not normally engaged when surveillance takes place in a public place with 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;
• the surveillance is time-limited, for example, lasting just one week;
• it is reactive, in other words, a short-term response to legitimate suspicions of grave and serious misconduct such as suspected theft, as opposed to being permanently installed, 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, using 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:
Secret cameras were trained on supermarket check-out operators to investigate unexplained losses. The cameras revealed theft by some workers, who were dismissed. They brought claims that their privacy rights had been breached and the ECHR agreed. The workers were not warned of the possibility of surveillance, in clear breach of data protection laws that gave them a reasonable expectation of privacy. The surveillance was not time-limited. Instead it lasted for weeks, all day long, and targeted all staff, not just those eventually found guilty. In addition, the videos were examined by several individuals before the claimants found out about them. The store’s response, in particular the failure to inform workers about the surveillance clearly in advance, was disproportionate, ruled the ECHR. A fair balance was not struck between the 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
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”, must be authorised at the highest level and there must be reason to suspect criminal activity or equivalent malpractice which would be hard to prevent or detect if staff were told 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 now 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 must consult data subjects or their representatives where appropriate. Records must be kept.