Judge Dedov is the one to watch here. He was the only one out of the European Court of Human Rights panel not responsible for a recent decision on employee surveillance which many may feel tilts European law around workplace monitoring altogether too far towards the interests of the employee.
Ms Ribalda and her four co-Claimants all worked at the same branch of Spanish supermarket MSA. In early 2009 she and they began to steal money from MSA, starting modestly with €7,800 in February and swiftly growing to a not unambitious €24,600 by that June. Stocktakes revealed the losses, but it was not initially clear to MSA whether they were being caused by the staff or the customers.
In mid-June 2009 MSA therefore installed cameras at that store, some visible and aimed at the entrance and exit doors, and some hidden and aimed at the checkouts and tills. The staff were told in advance about the visible cameras (and could see them anyway) but not about those aimed at them. Seemingly undaunted by the surveillance aimed at other areas, the five employees continued to steal with undiminished enthusiasm, and were caught squarely by the hidden cameras. All concerned were hauled in and, confronted by the evidence, made full admissions and were dismissed.
Against that unpromising background, all five brought claims in the Spanish Employment Tribunal arguing in particular that they had a right to be told of the hidden cameras. MSA’s failure to do so amounted to a breach of section 5 of the Spanish Personal Data Protection Law which required that a person whose data is being processed (including by his employer) must be “previously and explicitly, precisely and unambiguously informed” about it. If that were upheld then it might infringe their right to protection of their privacy, with the consequence under section 90 of the Labour Procedure Act that the video evidence would be inadmissible.
These claims were rejected the whole way up the Spanish legal system and finally found themselves in the ECHR in December last year. That Court found, following cases including our Montenegrin maths teachers, that even at work an employee has an expectation of privacy which requires to be rebutted before monitoring becomes appropriate. When carrying out the balancing of interests between employer and employee the Court had to bear in mind that the employee was contractually obliged to be in the workplace and so could not escape that oversight. Here it was noted also that a number of people had seen the footage before the employees, including their union representative and MSA’s lawyer. The employees had not been told of or consented to the surveillance of them. The footage had been taken over some weeks, at all hours and had caught images of other employees who were not guilty of theft. Taking those factors into account, the ECHR concluded that MSA’s measures were not proportionate to the protection of its employees’ interests and therefore that Article 8 of the EU Human Rights Convention had been breached. Each of the Claimants was awarded €4,000 as a result.
No matter how often you read this decision (I am nearing double figures), it remains bizarre. On the question of balance, MSA had to film all the staff all the time because it didn’t know who was doing the stealing or when. The filming lasted only two weeks from installation to dismissal. Telling the staff about the checkout cameras might have stopped the thefts, but would not have told MSA who had been guilty of them, and therefore would have left it continuing to employ people it knew to have stolen from it. It would also have been unable to consider proceedings to recover the money. It was surely not unreasonable (at its lowest) for the employees’ union rep and MSA’s lawyer to have seen the video evidence before it was relied upon, since either may have objected to its use as evidence (though neither did). The Court registered its displeasure in part by denying the Claimants the bulk of their costs, but surely that is not the point? Why are all these questions not overridden by the basic proposition that the Claimants stole and admitted doing it?
Enter left Judge Dedov, the sole dissenter, with a much more rigorous and compelling approach. In his view, criminal or otherwise offending behaviour should be incompatible with the right to a private life under the European Convention. “The public interest of society should prevail and safeguards against unlawfulness and arbitrariness should be limited to protecting against abusive interferences“, he said. Otherwise the Convention was being construed to allow these individuals to profit from their own admitted wrongdoing. In Judge Dedov’s view, Ribalda and her colleagues should not have had the right to challenge their dismissals via the EU Convention in these circumstances, and certainly should not have received any compensation for it. We must look out for this promising line of argument in future cases.