December 06, 2019
Fotis Bregiannis is a doctoral researcher in the field of European Labour Law at UCLouvain. He works at the social law department of the Centre for the Interdisciplinary Research in Law, Enterprise and Society (CRIDES) and is currently writing a doctoral dissertation on EU legal instruments imposing information-related obligations on MNEs (EWC Directive, 2014/95 Directive).
Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.
In López Ribalda and Others v. Spain, a recent judgment delivered by the Grand Chamber, the European Court of Human Rights (hereinafter ECtHR or Court) held, by 14 votes to three, that Spanish supermarket employees who were covertly filmed by security cameras in their workplace, following suspicions of theft, had suffered no violation of Article 8 of the European Convention on Human Rights (hereinafter ECHR). The Grand Chamber ruled against the Chamber judgment of 9 January 2018 which had found a violation of the employees’ right to respect for private life accordingly. In fact, the Grand Chamber seems more eager to accept restrictions to the protection of workplace privacy, contrary to the more promising Grand Chamber judgment in Bărbulescu v. Romania (in which two years ago the Court had found a violation of Article 8 in the case of the monitoring of an employee’s electronic communications).
In 2009, the applicants were employed as cashiers or sales assistants by the Spanish supermarket chain M. After noticing inconsistencies between the stock level and the sales figures as well as financial losses over a period of five months (amounting to around 80.000 euros), the supermarket’s manager installed both visible and covert CCTV cameras, the former covering the checkout areas and the latter covering the entrance/exit of the supermarket. The employees, however, were only informed about the instalment of the visible cameras. The applicants, together with other staff members, were filmed – through the hidden cameras – taking part in the theft of goods. The footage was communicated to a union representative and soon after fourteen employees – including the applicants – were dismissed on disciplinary grounds, as they were caught on camera helping customers and other co-workers steal as well as stealing themselves. Three of the five applicants signed a settlement agreement through which they acknowledged their involvement in the thefts and committed themselves not to challenge their dismissal before the labour courts, while the employer company committed itself not to initiate criminal proceedings against them. Following their dismissal, all applicants initiated proceedings for unfair dismissal before the Employment Tribunal questioning the use of covert recordings as evidence and opposing the use of such material as a breach of their privacy. The Employment Tribunal found no violation of the right to respect for private life with regard to two applicants as it concluded that the recordings were valid evidence and that their dismissal had been lawful. However, the tribunal dismissed the other three applicants’ cases, upholding the employer’s objection that the action was invalid because they had signed settlement agreements. Subsequently, the High Court upheld the first-instance judgments on appeal, arguing that the supermarket’s surveillance had met the criteria because it had been justified owing to suspicions of misconduct, had been appropriate for the aim pursued, and necessary.
Under Article 8 (right to respect for private life) and Article 6 § 1 (right to a fair trial) of the ECHR, the applicants complained about the covert video-surveillance and the courts’ use of the data obtained to find that their dismissals had been fair. In particular, the three applicants who signed settlement agreements also argued that the agreements had been forced upon them due to the video material and should not have been used as evidence during the dismissal procedure.
In its judgment, delivered on 9 January 2018, the Third Section of the ECtHR, by six votes to one, found a violation of Article 8 and no violation of Article 6. According to the Chamber:
‘while the video-surveillance had been set up on account of legitimate suspicions of theft, it had been broad in scope – not being limited in time, affecting all the employees working at the tills and covering all working hours – and had breached the obligation under domestic law to give prior information, to those persons who were concerned by the collection and processing of their personal data, of the existence, purpose and implementation of the measures.’
The case was referred to the Grand Chamber on 28 May 2018.
GRAND CHAMBER JUDGMENT
First, the Court ruled on the applicability of Article 8. To that end, it reviewed the concept of ‘private life’, as defined by the Court’s case law, and acknowledged ones reasonable expectation not to be recorded in his/her private social life. As pointed out, this expectation might be higher in relation to certain areas of the supermarket, such as toilets and private rooms, yet still exists in open public spaces, such as the entrance/exit or the area of the checkout counters. As video-surveillance was in place in the applicants’ workplace for a period of ten days, the hidden cameras being directed towards the supermarket checkout area and its surroundings and potentially recording the employees during their whole workday, the Court concluded that the employer’s measure interferes with Article 8.
In cases regarding employee surveillance carried out by the employer, the Court has established six principles – in the Bărbulescu judgment – in order to assess whether a given monitoring measure is in conformity with or in breach of Article 8. In brief, the Court needs to reflect on the following six elements in order to conclude that there has or has not been a violation of Article 8 (para. 116):
After proceeding to an overall evaluation of all six criteria, which were deemed transferable in the present case, the Court found no violation of Article 8. In particular, it accepted the finding of national courts, that the installation of secret surveillance cameras was a necessary employer decision due to the extent of the losses identified and the number of the employees suspected to have taken part in the thefts. It was stated that disclosing prior information to employees regarding the monitoring would have prevented the revealing of the thefts. The Court added that no less intrusive measures could have been applied in this case to safeguard the employer’s right to run his/her business smoothly. Moreover, despite the severe consequences of the monitoring, no further use of the footage was made, other than to prove the thefts. Finally, the Court noted that sufficient safeguards were available for the applicants in national legislation.
Regarding the alleged violation of Article 6, the Court reviewed the judgments of the national courts and found that the applicants had a fair possibility to question the authenticity and the admissibility of the camera footage during the national court proceedings. Additionally, it is underlined that the footage was not the only evidence for proving the thefts and its use did not undermine the fairness of the trial. As mentioned in the judgment, the applicants’ statements, the testimony of the supermarket manager, the company’s legal representative and the staff representative, and the expert’s report comparing the images recorded by the video-surveillance and the till receipts were also taken into account. In assessing the settlement agreements signed between the employer and three of the applicants, the Court confirmed that no trace of intimidation or duress could be identified.
At the outset of our commentary, it should be made clear that the ethical as well as the legal assessment of the acts carried out by the applicants – namely the theft of goods – is distinct from the issue brought before the Court and discussed here. In fact, irrespective of the condemnation of the behaviour per se, our critique focuses on the extent to which an employer, as a private party, may apply covert surveillance measures at the workplace in conformity with Article 8 of the ECHR.
To begin with, contrary to the comforting and somewhat promising resonance of the Bărbulescu judgment, the Court here seems to promote, or at least allow, the further destabilisation of the protection of privacy in the workplace. Despite explicitly acknowledging that the Bărbulescu criteria – which apply mutatis mutandis in the circumstances of the present case – ‘must be met’ in order for the measure not to be in breach of Article 8, the way in which their assessment is carried out in Lopez Ribalda is prone to criticism on three distinct points.
Firstly, the Court seems to selectively accept the non-fulfilment of a single criterion, insofar as the overall realisation of the principles is deemed competent. As a matter of fact, the majority accepts the lack of prior notification, and thus the non-satisfaction of the first requirement, underlining that in such a case, ‘the safeguards deriving from the other criteria will be all the more important’. Allowing such an exception, in the first place, already waters down the significance of the principles laid down in the Bărbulescu judgment, as it quite easily bypasses the respect to be paid to the principles.
Secondly, the non-fulfilment of the principle of prior notification, in particular, raises additional concerns in relation to the safeguarding of workplace privacy; it signals the possibility of covert monitoring carried out by a private party, rather than solely by the competent law enforcement authorities and under relevant (strict) regulations. According to the Court, the provision of information to any staff member ‘would defeat the purpose of the measure’, and thus it accepted the absence of prior notification while still finding no violation of Article 8. In our view, the Grand Chamber wrongfully evaluates the feasibility rather than the legality of the measure. At this point, the Grand Chamber seems to overlook the fact that the installation of surveillance cameras without previously informing the employees was in breach of Spanish national legislation (Section 89(1) of the Law No.3/2018), according to which ‘employers must inform employees or officials of the introduction of beforehand and in an explicit, clear and concise manner’. On top of that, the employer’s capacity to impose secret monitoring on the basis of subjectively evaluated suspicions promotes an atmosphere of mistrust and insecurity inside enterprises.
Thirdly, the assessment of some of the criteria is considerably superficial. To our disappointment, the ECtHR goes on to perform a rather hasty evaluation of the remaining principles and assesses their fulfilment without providing an in-depth and convincing reasoning of thought. In particular, the compliance with two of the Bărbulescu principles, namely the second and fourth, is, in our view, insufficiently justified. First, the Grand Chamber’s finding that the monitoring measure was limited in time (para. 126) seems less convincing than the opposite deduction previously made by the Court’s Third Section. The monitoring lasted for ten days and ‘ceased as soon as the employees responsible had been identified’. However, not only did it take place throughout the employees’ whole shift (meaning that, especially, the cashiers – including cashiers not suspected of any misconduct – would be captured during their entire working day), but also the surveillance measure was originally put into place for an indefinite period, which happened to amount to ‘only’ 10 days, and until the thieves were to be identified. The measure should thus be deemed excessive.
Additionally, we strongly oppose the Court’s frivolous finding that ‘the legitimate aim pursued by the employer could not be attained by measures that were less intrusive for the applicants’ rights’, owing to the severity of the misconduct, and therefore ‘the measure should be regarded as necessary’. As justly picked up by the dissenting Judges De Gaetano, Yudkivska, and Grozev, the exclusion of other less intrusive methods was inadequately explained and reached without the actual consideration of any alternative measures. In our opinion, the employer could have adopted less intrusive measures, such as the installation of visible cameras covering the tills (for which the employees would have been informed), the consultation with the trade union, the recruitment of security staff or the communication of their suspicions to the police and the subsequent initiation of criminal procedures. By abstaining from the consideration of other, more adequate, actions, a type of self-redress is being exonerated.
Furthermore, and within the proportionality assessment on the basis of the criteria, the ECtHR accepts the severity of the monitoring’s consequences (para. 127), yet considers the measure necessary (para. 128) due to the extent of the losses identified and the suspicion of misconduct of several employees. Interestingly, though, the Court does not weigh the extent of the losses against the shop’s turnover and fails to explain why the covert surveillance measure is justified, especially when the thefts were classified as ‘minor offences’ in the criminal proceedings before the national courts (para. 40).
Last but not least, the Court appears to underestimate the risks brought along by digital means of surveillance, and – in our view – sets a problematic precedent for other Member States in relation to workplace monitoring. As also rightly pointed out in the dissenting opinion, the majority’s reflection on the number of people who had access to the camera footage (para. 126) does not seem convincing. Any piece of CCTV footage is capable of potential leakage, irrespective of the number of people to whom the relevant video was presented in the first place. The Grand Chamber undervalues the technological ease with which electronic surveillance is carried out as well as its high level of intrusiveness. Both the reasoning and the finding of the majority may be interpreted as weakening the existing framework (in this case both the Spanish national legal framework and the ECtHR’s recent case-law) that guarantees the privacy of employees. Moreover, as aptly summarised in the separate opinion, ‘the Court not only needs to recognise the influence of modern technologies, but also has to develop more adequate legal safeguards to secure respect for private life of individuals’.
In sum, the judgment substantially narrows the value of the – partly debatable (also see relevant blogpost: Bărbulescu v Romania and workplace privacy: is the Grand Chamber’s judgment a reason to celebrate? – Argyro Chatzinikolaou) – Bărbulescu acquis, by accepting the conformity of a monitoring employer practice with Article 8, despite the non-fulfilment of all six criteria described above. Notwithstanding the exceptional nature of such an admittance, the Court’s eagerness to accept a derogation from the protection of employee privacy in relation to covert surveillance poses a danger that must not be underestimated. In the age of digital surveillance, such an ECtHR case-law precedent increases the power imbalance that intrinsically characterises employer to employee relationships. At the same time, regretfully, it undermines the privacy of individuals in spaces such as workplaces open to the public, where the protection threshold is already set low.