27 November 2019

Can you dismiss your employee, if caught on hidden camera while stealing cash? In its recent decision, the European Court of Human Rights answered this question in the affirmative, however it is doubtful, whether this ruling is compatible with strengthening data protection in the EU, particularly following the entry into force of the General Data Protection Regulation (GDPR) of the European Union.

1. Facts

In the case underlying the judgment, a Spanish supermarket installed cameras in its store in 2013 to find out, why a significant shortage occurred in every month. They notified the employees about the installing of certain cameras, but they also set up hidden devices to check the cash movement.

It turned out during the 10-day surveillance, that the workers did not do anything against the stealing of the customers, in addition they also pilfered the stock. Thereafter, the employer dismissed the employees concerned with immediate effect.

The supermarket made an agreement with some of the dismissed employees, under which the employees renounced to challenge the termination of employment, and the supermarket promised to refrain from making a police complaint for theft against them.

2. Spanish judgements

In spite of the above agreement, some of the employees challenged the legality of their employment termination in front of the Spanish labour court, who dismissed their action on the basis that the settlement agreement prevented the employees to dispute the validity of their dismissal.

In the cases of the other employees, the Spanish Labour Court had to decide on the legality of a dismissal, which is based on illegal evidence, namely the records of cameras installed without prior notification.

The Spanish Labour Court deliberated the unlawful video-surveillance on the basis of necessity and proportionality test, declaring that the hidden camera recording was necessary and proportional for the effective detection of the case, therefore it rejected the claims of the employees. After that, employees turned to the Spanish Constitutional Court, who also rejected their applications.

3. Decision of the ECHR

After having exhausted domestic remedies, the former employees started proceedings in front of the European Court of Human Rights in Strasbourg (ECHR), which tried to strike a fair balance between the two competing interests, namely the employees’ right to respect for their private life on the one hand, and the smooth operating of the store on the other.

The ECHR established, that although in Spain prior notification is needed to use video surveillance, yet it assessed the breach of the above rule as meeting the requirement of necessity and proportionality in this case, considering the reasonable suspicion, the limited area of the surveillance, the fact that they used the recordings only for the protection of the supermarket’s interest, and last but not least that there were no other appropriate means to achieve the goal.

Three judges expressed their different standpoint in dissenting opinions, explaining that the judgment of the ECHR may contribute to the unlimited use of covert video surveillance without proper legal protection of the employees.

4. Summary

The case which was the basis of the Strasbourg decision, had happened 5 years before the entry into force of the GDPR, therefore the ECHR did not have to take into account the increasing data protection trend of the past few years.

However, considering the entry into force of  the GDPR in May 2018, we warn every employer, encouraged by this ECHR decision, to refrain from monitoring its employees by hidden camera or relying on  evidence obtained unlawfully when dismissing an employee, because  in the changed legal environment, the lawfulness of such a measure is highly doubtful.

We should not forget that a camera installed lawfully, with the prior notice of employees not only has a dissuasive effect, but the records can be used as lawful evidence in front of courts, without any doubt.