Employers measures to employees and workplace increases day by day in direct proportion to development of technology. Considering the restrictions imposed to employees by these measures, it is quite possible for employers to wander from the legal ground. Hidden cameras may be one of the best examples in this context. In a case involving hidden camera precaution, comparison of employer’s managerial obligations and employee’s fundamental right of privacy must be compared with great attention and care. The necessities and principles of this assessment will be clarified in this present paper, through a case of European Court of Human Rights (ECHR) involving hidden camera measure of an employer.
The relationship of employer and employee creates a legal situation between unequals and as the technology develops it becomes harder for the employee, who is furnished with much limited authority, to defend oneself and secure her/his fundamental rights. For the very reason, it is necessary to provide a more effective protection mechanism. Within this scope, many conflicts have been submitted to court but this paper will be only about one of the cases taken to the European Court of Human Rights (ECHR), which concerns the effects of hidden camera on right to respect private and family life that enables the individual to protect his/her personal existence in society.
Summary of the facts
A supermarket manager in Spain installs a video surveillance system directed both to entries and tills, as a result of well-founded suspicion based on continuous inconsistencies between stock levels and sales figures and the possibility of employees’ inclusion to this unusual situation. Later on, the employer has informed employees about the cameras installed to prevent theft in a meeting but did not include hidden cameras focusing on tills to this notification. After 10 days of recording, several thefts and employees involved are detected and as result of this management fired fourteen employees for disciplinary reasons. During this process, three of the five applicants have signed an agreement with the employer, admitting their involvement in thefts and waiving their possible future claims for dismissal, in return for the company’s promise not to make a denunciation.
Issue of Law
There are five applicants in the case, each claiming violation of their right of privacy regulated in Art. 8 of European Convention on Human Rights (ECHR), which puts the state under obligation to respect and guarantee. In addition, third, fourth and fifth applicants also complained that the settlement agreement is signed under fear and threat which must lead to its invalidity. Within this context, rest of the paper will focus on the assessments of judicial process based on applicants’ claims.
Local Court Decision
Applicants alleged that the hidden camera records are provided without due process of law and therefore their use as evidence in proceedings would violate their right to a fair trial in Art. 6 of ECHR. In line with these claims, camera measure was analyzed based on its necessity, appropriateness and proportionality and as a result, the court decided its compliance with laws by stating that the manager (employer) had legitimate interest of clearing the suspicion and cameras were only recording limited to time and location. Local courts also supported the proportionality of the measure by indicating that if the employer had notified employees about the hidden cameras precisely, it would be very difficult to detect both offends and offenders.
Local courts rejected invalidity claim for settlement agreement and decided its lawfulness by stating that the agreement was not signed under fear or threat, it included mutual covenants and only employers who voluntarily chose to sign were affected by its consequences.
The employees pursued their claims to the ECHR by complaining that the Spanish courts had failed to strike a fair balance between interests and violated their right to respect for private life (Article 8 of ECHR) and right to a fair trial (Article 6 of ECHR)
Within the judgement process both applicants’ interests secured by Art.8 and employer’s obligation due to his/her manager qualification were examined together. As a beginning, the grand chamber examined the condition of legitimate interest and found the suspicion based on continuous inconsistencies acceptable. Another necessity was the notification of employees. ECHR indicates that the condition of notification grounds on the necessity to protect employee against superior position of the employer and therefore it is one of the most essential conditions while recording the employee by camera. However, the grand chamber also stated that despite its importance, notification is only one of the criteria and the proportionality test must be performed by holistic approach. While continuing to the case assessment, the Grand Chamber found the extent of the measure limited by indicating that cameras were only recording for ten days, the field of vision was limited to areas where suspected operations could be carried out and to individuals working in these areas. In addition to these, ECHR also emphasized that a supermarket has a public characteristic due to its function and employees working here may not have a high privacy expectation. In general, the grand chamber has considered all the facts of the concrete case and found the measure proportionate, with no violation of Art. 8 of ECHR.
Applicants’ allegation, that the hidden camera records were obtained by violation of their fundamental rights and are not legally permitted to use as an evidence got rejected after grand chamber’s decision of nonexistence of fundamental right violation. ECHR has lastly examined the settlement agreement between the employer and three employees and found no violation by the very same reasons mentioned by local courts.
Review of the Decision Considering Both Parties of Employment Relation
The findings obtained as a result of examinations based on the comparison of interests and proportionality assessment can be subject to different interpretations depending on the party. While the less powerful side of the labor contract is at one end of the scale and the only guarantee he/she has is legal regulations, legitimation of interventions to this guarantee makes the legal protection of the employee uncertain. In accordance with the concrete case, private life of employees, whose action has been specified as “minor offence” during criminal proceedings, may be recorded by the employer just due to financial suspicion and this intervention without any notification will not cause to violation of any fundamental right. Even though workplace security and administrative organization supposed to be beneficial goals for both sides of the employment relation, in practice they only serve for the employer and goes no further than interfering privacy for the employee.
Concrete case has also great importance for the employer standing on the other side of the interest scale. The employer, who has to take measures from time to time due to obligations arising from his/her manager qualification and legislation, may be involved in a cycle where he/she cannot fulfill his/her obligations while avoiding interfering in legally protected areas. At this exact point, just like the holistic approach of the ECHR in concrete case, wording of the regulations must be supported by teleological interpretation. Although employer’s lack of informing about the hidden camera measure is one of the aspects accepted in general, ECHR stated that lack of only a single condition will not result in unlawfulness of the measure alone. As a result of his assessment, the measures to be implemented in workplace should be analyzed in a holistic approach with their purpose.