It is well established that the Regulation of Investigatory Powers Act (RIPA) prevents the use of CCTV unless you display signs stating that CCTV is in operation and have a policy that states that CCTV footage can be used in disciplinary or other such cases but what about covert surveillance in the workplace?

What if you suspect your employees of theft? Introducing cameras with the associated signage will simply tip them off to the fact that you are watching and, unless they think they’re invisible, the thefts will stop.

So your only options are:

a. Accept the thefts, or

b. Use covert surveillance.

Your response may depend on what is being stolen, the overall cost and your ethical position. The odd pen or post-it note pad may not warrant further investigation, but loss of stock costing £100 per month probably would. Equally, you may want to take a zero-tolerance position that taking a pen is still theft from the company.

RIPA permits the use of surveillance in the workplace in some situations. Essentially, the installation of covert surveillance is permitted when there is a genuine belief that unwanted activity is taking place, e.g. Theft or damage to property, and that obtaining evidence can only be achieved by use of covert surveillance. The surveillance must be undertaken for as short a time as possible to obtain evidence and must be a reasonable and proportionate means of obtaining the evidence.

The recent ruling on the Spanish case López Ribalda and others v Spain, heard in the European Court of Human Rights Grand Chamber, reinforces this ‘exceptional circumstances’ position after supermarket shop workers were covertly surveyed for a period of two weeks. The installation of covert video surveillance occurred due to a high level of theft amounting to stock discrepancies of up to €20,000. The cameras were positioned to view all cashiers and recorded throughout the day for the two week surveillance period. Through this the supermarket identified 5 employees who were stealing stock themselves but also enabling customers to steal stock. These employees were dismissed for their conduct, which they did not challenge. However, the employees brought a claim that their employers use of covert surveillance was a breach of their Article 8 right to respect for private and family life.

The ECHR Grand Chamber ruled by a majority of 14 to 3 that no violation of Article 8 occurred. Employees should have a limited expectation of privacy at work on a supermarket floor where customers are present. The surveillance was limited to two weeks and the recordings were confined to a small group of individuals. A fair balance had been struck and the intrusion was proportionate in the circumstances.

As an employer you should only resort to covert surveillance as a last resort to obtain evidence you genuinely believe cannot be obtained in any other way. It should not be used as a ‘fishing’ exercise to see who you can catch doing what. If you happen to catch a non-targeted employee participating in a difference kind of misconduct, you can’t automatically use the evidence you have collected so far. You must go through the critical assessment as to whether covert surveillance is appropriate.

Who are we?

We are a team of professionally qualified and highly experienced specialists offering independent employment and organisational development advice, support, consultancy services and partnering arrangements to organisations in the south east. As a leading provider of high quality consultancy, training and development in areas of organisational change, leadership, mediation and conflict resolution and compliance with employment law, we will tailor our services to meet your needs. Our focus is to enable organisations to meet their legal responsibilities as employers and to facilitate developing their people to fulfil their potential thereby increasing team morale and adding value to your business. Understanding the importance of sharing, learning and networking, SEE provides a central hub for networks and partnerships. We gather and collate management information and data to share learning and benchmark to help you build on best practice. You don’t need to be a member of SEE to access our services but members do get discounted rates.

We’ve produced a leaflet that you can keep handy, summarising what we can do for you and your teams. You can download it here.

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