The European Court of Human Rights (“ECtHR”) has held that a Spanish supermarket using covert surveillance to monitor cashiers suspected of theft was in breach of the right to privacy.

MSA is a supermarket chain in Spain.  In 2009, the manager of one its branches identified substantial gaps between actual stock levels and the levels of supposed sales, with the difference sometimes being as high as €20,000/month.  The supermarket therefore introduced a network of visible cameras to monitor potential thefts by customers, and also installed covert cameras covering the cash desks to record thefts by employees.  Employees were not informed of these hidden cameras.

Five employees, including Ms López Ribalda, were recorded helping to steal items from the supermarket, including by scanning items into shopping baskets, and then cancelling the purchases.  Presented with the evidence, the employees admitted what they had done and were, not surprisingly, dismissed.

Some of the employees lodged claims for unfair dismissal in the Spanish courts, alleging, among other things, that the covert recordings leading to their dismissal had breached their rights to privacy under Article 8 of the European Convention on Human Rights.  The Spanish employment tribunals and the High Court of Catalonia gave short shrift to this argument, and so the employees escalated their claim by appealing to the ECtHR in Strasbourg.

The ECtHR considered whether the Spanish courts had struck an appropriate balance between the employees’ right to privacy, and the supermarket’s right to reasonable steps to protect its property.  Investigating suspected theft was a reasonable ground for surveillance.  However, the ECtHR held by a majority that the covert surveillance breached Spanish data protection legislation on the grounds that the employees had not been told about the cameras, that the cameras filmed all staff on the cash desks over a period of several weeks, and that the employer could have protected its rights in a more proportionate manner (e.g. by notifying employees that they were being recorded).  The Spanish state was therefore ordered to pay each employee €4,000.

Comment: On the face of it this decision may seem harsh, especially where the employees had admitted their wrongdoing.  However, it serves as a reminder that any form of monitoring of employees should only be used in a proportionate manner (monitoring of digital communications is perhaps more common than video recording for most employers), and that, in particular, covert surveillance is only likely to be appropriate in exceptional circumstances.

López Ribalda & Ors v Spain (Application nos. 1874/13 and 8567/13)

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