Last week the European Court of Human Rights delivered a Grand Chamber ruling on the protection of workers subject to video surveillance at work. The case raises an important issue in the field of industrial relations, but also in the protection of privacy at the workplace. The decision is even more relevant because the Grand Chamber overruled a prior chamber judgment in the same case and declared, in contrast with the chamber ruling, that the defendant State had not violated Article 8 of the Convention.
In López Ribalda vs Spain, the management of a supermarket chain installed video cameras in the premises after founded suspicions emerged that a group of workers were stealing, in liaison with third parties, goods from the store. Workers were informed of the installation of cameras at the main entrance and exits of the store, but not of the installation at the tills. After ten days of undercover filming, the cameras at the tills showed that several workers were indeed stealing goods in cooperation with other workers and third-parties. As a result, the workers concerned were dismissed immediately, and unsuccessfully challenged the employer’s decision in labour courts, in both the first and last instance.
According to Spanish law, workers must be informed of the installation of video cameras at work, as well as of their exact location. This provision was not complied with by the employer in the case of López Ribalda. Also, the cameras did not target the group of workers whom the employer suspected of, but they recorded the actions of all workers in the surroundings of the tills. As a result of these two factors, the chamber judgment of the European Court of Human Rights ruled that the Spanish authorities (and in particular the labour courts) had failed to protect the right to private life under Article 8 ECHR.
In last week’s Grand Chamber ruling, the Court overruled the Chamber judgment and sided with Spain. In sum, the Court argues that there was no violation of Article 8 because under Spanish law there are sufficient safeguards to prevent breaches of the fight to a private life, and the labour courts took duly into account all the relevant circumstances, including the duration of the recordings, the public nature of the area under surveillance, the justified reasons for the recordings, and the general information on display about the presence of cameras. In the final passages of the judgment, the Court admits that the employer failed to comply with Spanish law by not informing the workers of the location of cameras recording the area of the tills. However, the Court concludes that such a breach does not interfere with Article 8 ECHR and the workers could, in any case, claim damages from their employer in another Spanish court to satisfy the harm caused by the unlawful action.
The judgment is quite striking. It stands at odds with past precedent (not only the Chamber judgment, but also prior case-law in Köpke v. Germany and Bărbulescu v. Romania), and it is surprising in light of the national context, which precluded, under domestic privacy provisions, the unreported recording of workers in the workplace. The Spanish rules that require the employer to inform workers of the exact location of a camera are specifically enacted to protect personal data. In other words, they are rules to protect the interests that Article 8 ECHR also intends to safeguard. Therefore, it is surprising that a breach of national law intending to protect the private life of a worker, in a case in which the breach is uncontested by the employer, has no relevance whatsoever for the Court. The fact that the workers are entitled to claim civil damages as a result of such breach is hardly a consolation.
However, the ruling is pointing at a reality that will be more and more frequent as time goes by: the fact that States, particularly those in the European Union, are increasing their levels of protection in the sphere of private life, does not automatically imply that the standard of Article 8 ECHR will automatically adjust to the new realities. The autonomous nature of the Convention refrains the Court from being dragged into higher levels of protection in specific areas. That is precisely what has happened in López Ribalda vs. Spain, where the signatory State has clear and precise rules on the protection of personal data of workers which were breached, but with no direct consequences on the violation of Article 8 ECHR.