The European Court of Human Rights (ECHR) issued a ruling on October 17, 2019 authorizing the use of video surveillance devices of employees without having informed them beforehand. However, it limits this type of recourse to the existence of reasonable suspicion of serious irregularities and requires that the extent of the breaches found justifies it.
This position adopted by the ECHR is opposed to the one applied in France, but it could be an interesting solution for French companies exposed to similar cases.
1/ The installation of cameras in the workplace in France
The CNIL and the General Data Protection Regulation authorize the installation of a video surveillance system in a place open to the public, particularly exposed to the risk of aggression and theft and with the sole aim of ensuring the safety of people and property. Incidentally, this can lead to the monitoring of employees’ activities.
The RGPD imposes, in particular, the information of the employees prior to the implementation of the video surveillance system. If employees are not informed, evidence from a video surveillance system is inadmissible before the industrial tribunal to justify a dismissal or a disciplinary sanction (Cass. Soc. September 20, 2018, n°16-26.482).
On the basis of the protection of privacy in the workplace, this rule may seem justified given the intrusive nature of such a device in the activity of employees. Moreover, such prior information can also be explained on the basis of the principle of fairness of evidence in civil proceedings.
However, this formalism may in some cases prevent the employer from protecting his own interests, for example if it makes it possible to circumvent any control in order to commit theft.
It is with a view to reducing this imbalance that the ECHR seems to have issued this decision.
2/ The ECHR is flexible regarding the concealed installation of a video surveillance system in the workplace
This Spanish case concerned cashiers who were dismissed for having participated in the theft of goods recorded by cameras of which they were unaware. These employees then brought an action before the Spanish labor judge for wrongful dismissal, considering that the use of this video surveillance system constituted a violation of their right to privacy.
The ECHR ruled in this case that “the video surveillance measures are taken by the employer did not require, the prior consent of the employees concerned but had to be subject to a proportionality check. It considered that the measure taken in this case satisfied these criteria because it was motivated by the existence of suspicions of irregularities, adequate to the aim pursued, necessary to the achievement of this aim since a more moderate measure would not have been able to achieve this aim, and balanced since the recordings were limited, in time and space, to what was necessary to verify the suspicions in question.“
The ECHR thus seems to set aside in certain specific hypotheses the obligation to inform employees in advance when it can be compensated by other criteria in particular :
- The degree of intrusion into the private life of the employee
- The justification of the measure by legitimate reasons
- The consequences of the surveillance for the employees who were the subject of it
Although the Cassation Court has not followed this reasoning to date (cass. soc. December 11, 2019), the use of this ECHR decision could constitute a new line of defense to justify a dismissal or a disciplinary measure pronounced against an employee who has not been previously informed.
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