Again, a ruling of the European Court of Human Rights (ECHR) causes major controversy about the constantly questioned and difficult balance between the employer’s right to monitor and surveil the activity of its employees and the latter’s right to the protection of their privacy (privacy and personal data).
The judgment delivered by the ECHR on January 9, 2018 (López Ribalda Case) has raised once again the permanent uncertainties faced by employers in relation to the use of video surveillance systems to monitor their employees’ activity.
The scenario analyzed referred to the installation by a supermarket of hidden cameras to monitor its cashiers, for the purpose of investigating certain discrepancies which had been noticed between the goods stored and the actual sales, which were causing economic losses for the supermarket.
That ruling considers that the installation of hidden surveillance cameras for an unlimited period of time constitutes, in the light of the specific facts examined, conduct violating the employees’ right to privacy, both due to the breach of the duty to inform them provided in the Data Protection Law (LOPD), and since the monitoring and surveillance measure adopted was disproportionate, as there were other less harmful means of proving the breaches committed by the employees.
The aforementioned case law of the ECHR may involve the review of the case law of our Constitutional Court regarding the use of video surveillance systems intended to monitor and surveil workers’ activity. That case law is contained for example in the Constitutional Court judgment of March 3, 2016, which can be basically summarized as follows:
- The first issue which that ruling analyzes is whether it is necessary to have the worker’s express consent in order to be able to subject him to monitoring by video surveillance systems, it being concluded that the worker’s consent is deemed to be implied, provided that the processing of personal data is necessary for the maintenance and performance of the employment contract signed by the parties.
- Secondly, in relation to the duty to inform, it is emphasized that the constitutional relevance of the absence or deficiency of the fulfilment of the duty to inform the workers in cases of video surveillance requires, in each case, the weighing up of the worker’s right to data protection and the employer’s management power.
According to the Constitutional Court, the circumstances of each specific case would determine whether or not the employer’s surveillance violates each worker’s fundamental right to the protection of personal data.
Thus, the obligation to inform the workers would have no constitutional relevance in cases in which the proportionality test is passed, i.e. if there is a justification which allows the adoption of the surveillance measure capable of achieving the proposed objective (suitability), if, in addition, it is necessary, in the sense that there is no other more moderate measure for the achievement of the proposed objective (necessity), and, finally, if more benefits for the public interest can be derived from it than harm to other conflicting interests or values (proportionality).
The analysis of the ECHR judgment and of the constitutional case law raises the question of whether the European Court considers that the absence or deficiency of the breach of the duty to inform workers in advance automatically constitutes a violation of the fundamental right to the protection of personal data regardless of the circumstances existing in each case or whether, on the other had, the important thing in these cases is to pass the proportionality test.
The Spanish courts will have to establish the criterion applicable in these cases, whether, in any event, the obligation to inform workers in advance must be fulfilled or, on the other hand, whether in cases in which there is a prior suspicion of a sufficiently important employment infringement, the passing of the proportionality test would confer an exemption from the fulfilment of the duty to inform workers in advance from a constitutional perspective.
The issue is important, because the result of that interpretation and the application of Community and national rules may lead, in certain cases, to the impossibility of using traditional evidence among which video evidence may be highlighted.
Garrigues Labor and Employment Law Department