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Covert CCTV monitoring possible without violating an employee’s Article 8 privacy rights

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.

Covert CCTV monitoring possible without violating an employee’s Article 8 privacy rights

Banking Standards Board publishes guidance on regulatory references

Earlier this month, the Banking Standards Board (BSB) published the final version of its statement of good practice relating to the regulatory reference requirements established by the FCA and PRA for FSMA authorised firms under the Senior Managers and Certification Regime (SM&CR).

The regulatory reference rules under SM&CR apply to all firms that are authorised persons under the Financial Services and Markets Act 2000 (FSMA), or have permission to carry out FSMA regulated activities in the UK, as well as all insurance and reinsurance firms regulated by the FCA and the PRA.

The guidance contained in the statement published this month was prepared in partnership with BSB members through a cross industry certification regime working group, and is based on the three principles of fairness, proportionality and consistency. In particular, it covers good practice when it comes to both providing and obtaining regulatory references, as well as the type of information to include in a reference.

The purpose of regulatory references, which came into effect in March 2017, was to establish a framework to allow and require firms to share relevant information on certain individuals’ proper conduct, fitness and propriety (F&P) in order to support their assessment of potential new recruits as fit and proper. The rules were established with the overarching goal of preventing the “recycling” of individuals with poor conduct records between firms.  The aim being to prevent financial, legal and reputational damage that individuals in risk-taking roles and with a history of misconduct could cause firms and the industry as a whole, as well as avoiding the negative consequences such damage could have for clients and wider society.

The rules set out three principal responsibilities for firms: to seek regulatory references when considering the appointment of individuals to senior management functions (SMFs), certification roles or as notified non-executive directors (NED); to provide regulatory references when requested; and to revise and, if necessary, update references if information comes to light that would affect a firm’s assessment of an individual’s F&P. These rules require firms to put policies and processes in place to comply with their responsibilities as they relate to recruitment and certification processes, and the guidance published by the BSB this month is intended to assist firms in doing this. The statement provides a high-level set of principles for firms to be able to scrutinise their own policies and procedures against the BSB’s suggested processes, and provides an example minimum standard for them to adopt.

Along with the guidance, the BSB published its summary of the consultation it conducted of its draft guidance back in January 2019. The BSB stressed the importance of firms adhering to the spirit of the regulations, and noted that it had specifically included in the published guidance ways in which firms could ensure that they did this with respect to each of the three key principles it had identified.

Whilst not imposing any new obligations on BSB members or intended to replace any existing regulation, this guidance provides a helpful check for firms on what constitutes a “good” standard set of policies and procedures. Firms should ensure that they review their internal policies against the outlined guidance, and that they remain alive to the requirements of the SM&CR rules when hiring or providing references for individuals covered by the regulation.

Banking Standards Board publishes guidance on regulatory references

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As UK companies with more than 250 employees are now required to publish gender pay gap information, the government has turned its attention to the ethnicity pay gap.
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Parental Bereavement (Leave and Pay) Act 2018 receives royal stamp of approval

The Parental Bereavement (Leave and Pay) Act 2018 was given royal assent on 13 September 2018, having started out in July 2017 as a Private Member's Bill subsequently supported by the government.
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