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The European Court of Human Rights (ECHR) has ruled that covert surveillance to tackle workplace theft did not breach an employee’s right to privacy under Article 8 of the European Convention on Human Rights.

What are the facts of the case?

Five supermarket cashiers were dismissed after hidden CCTV cameras captured them stealing. The cameras had been installed as part of an investigation into large stock discrepancies. The employees brought unfair dismissal claims which were rejected by the Spanish courts who found that, although no prior notice of the surveillance had been given (a prerequisite under Spanish law), this was justified by the employer’s reasonable suspicion of theft.

What did the ECHR decide?

The employees appealed to the ECHR, claiming that their Article 8 rights (respect for one’s private life) had been breached by the covert video surveillance.

Initially, the ECHR upheld the claims on the basis that the video surveillance had targeted all staff, rather than particular individuals, without any time limit and that the employees had not been informed of the surveillance in accordance with Spanish domestic law.

The Spanish government then asked for the case to be referred to the Grand Chamber of the ECHR, which overturned the decision and deemed that the employer did not breach the employees’ right to privacy. It commented that there was a balance to strike between private and public interests and considered the following issues:

• whether the employees had been notified of the possibility of video surveillance;
• the extent of the monitoring by the employer and the degree of intrusion into the employees’ privacy;
• whether the employer had provided legitimate reasons to justify monitoring and the extent of those reasons;
• whether less intrusive methods of monitoring would have been possible;
• the consequences of the monitoring for the employees; and
• whether the employees had been provided with appropriate safeguards.

The Grand Chamber of the ECHR found that the prolonged suspicion of theft was a legitimate reason for surveillance. Furthermore, the monitoring took place in a public area and the duration was not excessive. A limited number of people viewed the recordings, which were used solely for the purposes of the investigation. The ECHR recognised that, under Spanish law, notification of surveillance is required. However, it concluded that the severity of the misconduct meant that surveillance without prior notification was in the public interest.

What can employers take from this decision?

This decision shows that it is possible to use covert monitoring in a targeted investigation. However, employers should be wary of viewing this as a green light on all surveillance, given the court’s careful consideration of all the above factors, and should maintain a strict policy that covert surveillance should only be used when the employer believes there is no less intrusive way of tackling the issue. Appropriate safeguards on use of the images should also be established.

The Edinburgh Employment Appeal Tribunal has considered this yesterday.

In 2017, the Glasgow Employment Tribunal found that foster parents, Jimmy and Christine Johnstone, were employees of Glasgow City Council. This meant they should benefit from the same employment rights and protections as other Council workers.

The Tribunal based its decision on a number of factors including the following:
• The Johnstones were obliged to personally perform the foster care work;
• In exchange they were paid £32,000 per annum;
• They were allowed paid holidays;
• It was a condition of the agreement that neither of them took other work without the Council’s consent;
• There was a requirement to submit a daily parental report which indicated a degree of day-to-day control;
• The Johnstones were also required to attend weekly meetings; and
• They had no real discretion as to how the work they were required to do should be undertaken.

The Tribunal found that the degree of control was such that the claimants were employees of the Council working under a contract of service.

Glasgow City Council appealed against the Tribunal’s decision and the appeal was heard this week by the Employment Appeal Tribunal. The case is adjourned whilst Lord Summers considers his judgment.

Earlier in July we posted an update on the launch of consultation on the proposal for a single employment rights enforcement body in the UK, contained in the government’s Good Work Plan (earlier update here). The consultation period for this proposal closed on 6 October 2019. Both the Employment Lawyers Association (ELA) and Citizens Advice Bureau (CAB) have now published their feedback on the proposal.

The CAB welcomes the proposal taking the view that the current enforcement system is not working. They argue the current system is complicated for complainants as it consists of multiple enforcement bodies that have varying powers on a range of complaints. For example, both the Gangmasters and Labour Abuse Authority (GLAA) and HMRC Statutory Sick Pay Disputes Team have a responsibility to process complaints relating to sick pay, but only a complaint to the GLAA may lead to an investigation on wider practice. A harmonised system would provide workers with a single place to go for help on all their basic employment rights.

The ELA also suggested that the current system is not an effective means of enforcing individual’s employment rights and that too much reliance is placed on the Tribunal process. The ELA were positive about the proposal, suggesting that it would be a single point of contact for individuals and could be a central organisation providing materials to educate workers and employers about employment rights.

However, both the ELA and CAB raised concerns over aspects of the proposal.  In particular, these concerns included the time required to amalgamate the existing system into a single body and that sufficient funding and resources will need to be allocated to co-ordinate such a move. The ELA suggested that the single enforcement body should not erode the existing skills and expertise within separate organisations, singling out the Equality and Human Rights Commission in particular for its expertise in equality issues and recommending that its role should not be interfered with. It also raised the concern that a single enforcement body that is more accessible to employees could increase the volume of state investigations compared to the number of Tribunal claims, as employees may feel more comfortable making a claim to a government body than bringing a Tribunal case. Further management time and resources would need to be allocated to dealing with such investigations and it will need to be determined whether this would be the most efficient means of dealing with employees’ complaints.

Following the responses to the consultation, it is yet to be seen whether the government will alter the proposal put forward by the Good Work Plan.