Case of European Court of Human Rights, January 09, 2018 (case LÓPEZ RIBALDA AND OTHERS v. SPAIN)

Defense:SPAIN
Resolution Date:January 09, 2018
SUMMARY

Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-... (see full summary)

 
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THIRD SECTION

CASE OF LÓPEZ RIBALDA AND OTHERS v. SPAIN

(Applications nos. 1874/13 and 8567/13)

JUDGMENT

STRASBOURG

9 January 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of López Ribalda and Others v. Spain,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,Luis López Guerra,Dmitry Dedov,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides,Jolien Schukking, judges,and Stephen Phillips, Section Registrar,

Having deliberated in private on 12 December 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in applications (nos. 1874/13 and 8567/13) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Spanish nationals, whose details are set out in the attached Annex (“the applicants”).

  2. The first applicant lodged her application on 28 December 2012 and the other applicants lodged theirs on 23 January 2013. They are all represented before the Court by Mr J.A. González Espada, a lawyer practising in Barcelona. The Spanish Government (“the Government”) were represented by their Agent, Mr R.A. León Cavero, State Attorney.

  3. The applicants argued that the covert video surveillance ordered by their employer without previously informing them had violated their right to privacy protected by Article 8 of the Convention. They further complained under Article 6 of the Convention that the proceedings before the domestic courts had been unfair in that the video recordings had been used as the main evidence to justify the fairness of their dismissals. The third, fourth and fifth applicants also claimed that the domestic courts had determined the fairness of their dismissals on the basis of settlement agreements they had signed under duress, which had violated their right to a fair trial under Article 6 of the Convention. Lastly, the first applicant claimed that the judgments had lacked proper motivation as to her specific circumstances.

  4. On 17 February 2015 the applications were communicated to the Government.

  5. The European Trade Union Confederation (ETUC) was given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  6. At the time of the events the applicants were all working as cashiers for M.S.A., a Spanish family-owned supermarket chain.

  7. At the beginning of February 2009 the applicants’ employer noticed some irregularities between the supermarket stock levels and what was actually sold on a daily basis. In particular, the shop supervisor identified losses in excess of EUR 7,780 in February, EUR 17,971 in March, EUR 13,936 in April, EUR 18,009 in May and EUR 24,614 in June 2009.

  8. In order to investigate and put an end to the economic losses, on 15 June 2009 the employer installed surveillance cameras consisting of both visible and hidden cameras. The purpose of the visible cameras was to record possible customer thefts and they were pointed toward the entrances and exits of the supermarket. The purpose of the hidden cameras was to record and control possible employee thefts and they were zoomed in on the checkout counters, which covered the area behind the cash desk. The company gave its workers prior notice of the installation of the visible cameras. Neither they nor the company’s staff committee were informed of the hidden cameras.

  9. On 25 and 29 June 2009 all the workers suspected of theft were called to individual meetings. During those meetings the applicants admitted their involvement in the thefts in the presence of the union representative and the company’s legal representative.

  10. Hereafter and for the sake of clarity, the applicants will be referred to as the first, second, third, fourth and fifth applicants (see the attached Annex).

    1. Group A (the first and second applicants)

  11. On 25 and 29 June 2009 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to their letters of dismissal, the security cameras had caught them scanning items from the grocery baskets of customers and co-workers and afterwards cancelling the purchases. Security cameras had also caught them allowing customers and co-workers to leave the store with merchandise that had not been paid for.

  12. On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no.1 (hereinafter “the Employment Tribunal”). The same day the second applicant brought similar proceedings before the Employment Tribunal in a joint application with the third, fourth and fifth applicants (see paragraph 20 below).

  13. In the framework of the proceedings both applicants objected to the use of the covert video surveillance, arguing that it had breached their right to protection of their privacy.

  14. On 20 January 2010 the Employment Tribunal issued two judgments ruling against the applicants, declaring both dismissals fair. The main evidence supporting the fairness of their dismissals was the recordings resulting from the covert surveillance, as well as the witness statements of co-workers dismissed for their involvement in the thefts, the shop manager, the union representative and the company’s legal representative.

  15. The Employment Tribunal found in both judgments – as regards these two applicants in particular – that the use of covert video surveillance in the workplace without prior notice had been in accordance with Article 20 of the Labour Regulations (Estatuto de los Trabajadores), which allowed an employer to use monitoring and surveillance measures which he or she deemed appropriate to verify that an employee was fulfilling his or her employment duties, as long as the employer respected “human dignity”. This had been confirmed by the Constitutional Court in several judgments (see, among other authorities, judgment no. 186/2000 of 10 July 2000). According to the Constitutional Court’s case-law, an employer’s right to adopt organisational arrangements and act as a disciplinary authority had to be weighed against an employee’s fundamental right to privacy recognised under Article 18 of the Constitution. In cases where there were substantiated suspicions of theft, special circumstances justified interference with an employee’s right to privacy, which was considered to be appropriate to the legitimate aim pursued, necessary and proportionate. Following this case-law, the Employment Tribunal, having regard to the evidence before it, found that the employer had had sufficient grounds to conclude that the applicants’ conduct amounted to a “breach of contractual good faith and abuse of trust” and thus declared both dismissals fair in conformity with Article 54.2.d of the Labour Regulations.

  16. The applicants appealed before the High Court of Justice of Catalonia on 16 and 22 March 2010 respectively. On 28 January and 24 February 2011 the court upheld both first-instance judgments, referring to the Constitutional Court’s case-law and endorsing the Employment Tribunal’s finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desks. While acknowledging that it was possible that the employer could face an administrative sanction for not informing its employees and the staff committee in advance of the installation of the cameras, that fact alone had no relevance from a constitutional point of view, since from that perspective the covert video surveillance had been justified (in that there had been reasonable suspicions of theft), appropriate to the legitimate aim pursued, necessary and proportionate. Consequently, their dismissals had been justified on the same grounds as already stated by the Employment Tribunal.

  17. The applicants brought cassation appeals, which were declared inadmissible on 5 October 2011 and 7 February 2012 respectively. Ultimately the applicants lodged amparo appeals with the Constitutional Court, which were declared inadmissible on 27 June and 18 July 2012 respectively, due to the “non-existence of a violation of a fundamental right”.

    1. Group B (the third, fourth and fifth applicants)

  18. On 25 and 29 June 2006 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to the employer, the security cameras had caught the third applicant scanning items from the grocery baskets of customers and co-workers and afterwards voiding the receipts. Security cameras had also caught her allowing customers or co-workers to leave the store with merchandise that had not been paid for. As regards the fourth and fifth applicants, security cameras had caught them stealing goods with the help of their co-workers, such as the second applicant.

  19. On the days that they were dismissed all three applicants signed a document called a “settlement agreement” (acuerdo transaccional), by which they committed themselves not to bring proceedings against their employer for unfair dismissal, while the employer committed itself not to bring criminal charges against them for theft. In the meetings at least one union representative and the company’s legal representative were also present.

  20. Despite the settlement agreements, on 22 July 2009 the applicants, together with the second applicant (see paragraph 12 above), brought proceedings for unfair dismissal before the Employment Tribunal. According to the applicants, the settlement agreements had to be declared void. They claimed that the consent they had given was not valid, since they had been under duress at the time they had signed the...

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