At the origin of the ruling of the European Court of Human Rights the case of a Spanish supermarket where the manager, detecting irregularities between stock and sales stock and a significant loss in the proceeds decided to have some CCTV cameras installed, visible and not without pre-notify employees
An employer can install hidden cameras for video surveillance without warning their employees if they have a well-founded suspicion that they are robbing him and if the losses sustained for their conduct are huge. This is what the Grand Chambre of the European Court of Human Rights, according to which the behavior of the owner of a Spanish supermarket can be considered legitimate and does not violate the right to privacy of some cash desk workers, fired after being filmed while stealing products at work or helping others do it.
The case that gave rise to the ruling of the ECHR (judgment of 17 October 2019 on appeals 1874/13 and 8567/13) dates back to 2009, when the director of a Spanish supermarket in the province of Barcelona, detecting irregularities between warehouse stock and sales and a significant loss in receipts over five months (around 82 thousand euros) decided to have some CCTV cameras installed, both visible (at the exits) and hidden (pointed at the speakers). The video recordings showed a series of thefts of goods by the staff that led to 14 letters of dismissal for disciplinary reasons between cashiers or sales people.
Although the dismissals were considered legitimate by the national courts, five of the dismissed employees decided to appeal to the Strasbourg Court. Under Spanish law, in fact, the cashiers should have been previously informed of surveillance. In the appeal, it was therefore asked to censure the conclusions of the Spanish justice recognizing in particular a violation of Article 8 of the European Convention on Human Rights on the right to respect for private and family life.
For the judges of the European Court, the Spanish colleagues called to decide the legitimacy of the dismissals have “carefully balanced” the rights of the employees suspected of theft and those of the employer, carrying out a thorough examination of the reasons for the video surveillance. And the lack of prior notification of surveillance, despite being provided for by the Iberian internal rules, is to be considered justified by the “reasonable suspicion” of a serious fault of the cashiers and by the extent of the economic loss suffered by the supermarket due to the theft.
In considering the monitoring “proportionate and legitimate” and the intrusion into the privacy of the applicants not excessively serious, the Spanish judges did not therefore exceed their discretionary power (“margin of appreciation”) also for its short duration (10 days) and the limited number of people made aware of the videos. The limited extension of the supervised area, limited to the cash area, was also decisive. For the ECHR, the level of privacy that an employee can legitimately expect depends also on the location: very high in private places (toilets or cloakrooms), where there is an absolute ban on video surveillance; high in restricted work spaces (offices), where it can be justified; lower, in work spaces visible or accessible to colleagues or the general public.
The line of the ECHR is shared by the Italian Privacy Guarantor, which in a note underlines how the sentence “on the one hand justifies, in this case, the hidden cameras, on the other hand confirms however the principle of proportionality as an essential requirement of legitimation of the checks in the workplace “. For the go-ahead for “secret” video surveillance the Strasbourg Court has in fact ascertained a series of assumptions, such as the “well-founded and reasonable suspicions” on the thefts committed by workers, the considerable damage suffered by the employer. The «hidden» video surveillance, the Guarantor comments, «is therefore, admitted only as a last resort», «with spatio-temporal methods such as to limit as much as possible the incidence of control over the worker», and can in no case «become an ordinary practice “. The “essential requirement” for the checks on the job to be legitimate, the Guarantor concludes, “therefore remains, for the Court, their strict proportionality and not excess”, which once again confirm the cornerstones of the protection of personal data.