Footage from hidden cameras used as evidence in court proceedings regarding dismissals

With its recent judgment in the case López Ribalda and Others v. Spain, published on 9 January 2018, the European Court of Human Rights concluded that employers have to notify their employees of the use of video surveillance devices, even if their purpose is to identify any illicit conduct of employees, such as theft.

However, the Court specified that footage from hidden cameras may still be used as evidence in court proceedings regarding dismissals, if it is not the only piece of evidence used against employees.

With this clarification, on the one hand Spain was considered at fault for having violated Article 8 of the European Convention of Human Rights, which protects the right to private and family life, but on the other hand it prevailed in relation to Article 6 of the Convention regarding the right to a fair trial.

As regards the circumstances of the case, the employer had decided to install a video surveillance system in its supermarket after some products has disappeared from the shelves of the store. The employer informed its employees about the existence of only some of the cameras while keeping others hidden. This helped the employer to successfully identify the cashiers involved in the thefts and to then dismiss them.

After the dismissed employees’ claims had been rejected by the Spanish courts, the Court in Strasbourg ruled in their favour, stating that there had been an unfair interference in the employees’ private lives due to the hidden cameras and the general video surveillance conducted by the employer over a period of weeks and for entire days.

The ECtHR found this type of interference in violation of the Convention.

As regards the use of video footage as evidence in a trial, the judges stated that it is not contrary to the ECHR in the presence of some conditions. The Court always evaluates all of the circumstances of the specific case on an equitable basis, including the importance of the evidence produced and whether it can be considered decisive for the outcome of the case.

If the decision of domestic judges (regarding the legitimacy of a dismissal) is based on various witness statements and other elements, and the videos are not the only piece of evidence, then the trial is considered fair.