The issue was the admissibility of the evidence derived from an improperly installed video surveillance system without the employee’s knowledge and without informing the employee of the purpose of the video surveillance system and/or of the legal basis underpinning its use.
While the appellate court had previously ruled in favour of the employee, deeming the evidence obtained by unfair means inadmissible, the Cour de Cassation has now reversed its long-established position and ruled that, “Il résulte de l’article 6, § 1, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales et de l’article 9 du code de procédure civile que, dans un procès civil, l’illicéité dans l’obtention ou la production d’un moyen de preuve ne conduit pas nécessairement à l’écarter des débats. Le juge doit, lorsque cela lui est demandé, apprécier si une telle preuve porte une atteinte au caractère équitable de la procédure dans son ensemble, en mettant en balance le droit à la preuve et les droits antinomiques en présence, le droit à la preuve pouvant justifier la production d’éléments portant atteinte à d’autres droits à condition que cette production soit indispensable à son exercice et que l’atteinte soit strictement proportionnée au but poursuivi.”3
The Court further held that, “En présence d’une preuve illicite, le juge doit d’abord s’interroger sur la légitimité du contrôle opéré par l’employeur et vérifier s’il existait des raisons concrètes qui justifiaient le recours à la surveillance et l’ampleur de celle-ci. Il doit ensuite rechercher si l’employeur ne pouvait pas atteindre un résultat identique en utilisant d’autres moyens plus respectueux de la vie personnelle du salarié. Enfin le juge doit apprécier le caractère proportionné de l’atteinte ainsi portée à la vie personnelle au regard du but poursuivi.”4
The admissibility of unfair evidence is therefore subject to two critical conditions:
- it is indispensable to prove the facts and no other means of proof is available; and
- the infringement of the other party’s rights must not be disproportionate to the objective pursued.
IMPACT IN MAURITIUS
The present ruling seems to be aligned with the position of our courts which has the discretion to exclude material where the prejudicial effect of which outweighs its probative value.
In State v Sir Bhinod Bacha and Ors [1996 MR 97], the Court left open the question as to whether material obtained in breach of a fundamental right protected under the Constitution should automatically be excluded but held that, in exercising its discretion to allow or exclude evidence which a party is seeking to adduce, a Court should give “the gravest consideration” to any claim of interference with a constitutional right.
While in the present matter, the Cour de Cassation did not find that the Employer had to seek an order from a Judge to be able to secretly monitor the employee with covert surveillance cameras and found that this was admissible evidence when the case came before a court of law, on the other hand, there have been notable judgments by the European Court of Human rights which has ruled that employee surveillance may infringe the right to privacy.
EUROPEAN COURT OF HUMAN RIGHTS DECISIONS
For example, in Köpke v. Germany [5 October 2010], a 2010 judgment from the European Court of Human rights on the issue of covert video surveillance operation, the Court declared ‘inadmissible, as being manifestly ill-founded, the applicant’s complaint under Article 8 of the Convention, finding that the domestic authorities had struck a fair balance between the employee’s right to respect for her private life, her employer’s interest in the protection of its property rights and the public interest in the proper administration of justice.’
In Ribalda & Ors v Spain (2018) ECHR, five supermarket cashiers were accused of theft and they have argued that the covert video surveillance ordered by their employer without having been informed of same was in violation of their right to privacy under Article 8 of the ECHR. The Court was of the view that although the employer had given the cashiers notice of the installation of cameras that were visible, there were some other hidden cameras which had been installed and they had not been informed of same.
The Court considered the following factors in reaching its decision:
- a number of people had seen the footage before the applicants, including their union representative and the employer’s lawyer;
- the workers had not been told of, or consented to, the covert surveillance of them; and
- the footage had been taken over a number of weeks, at all hours and had captured images of workers other than those suspected of theft.’
It distinguished the present matter from that of Köpke (supra) inasmuch as the surveillance measure was limited in time and was carried out for two weeks, targeting only two employees. In the present case, however, the decision to adopt surveillance measures was based on a general suspicion against all staff in view of the irregularities which had previously been revealed by the shop manager.”
The Court held that the employer should have protected its property (given the theft suspicion) by other means which would have been less impactful on the workers’ privacy, and added that the employer should have notified the workers in advance of the installation of the surveillance systems observing that the Spanish courts had failed to strike a fair balance between the applicants’ rights to respect for their private lives and the employer’s interest in the protection of its property rights.
WHAT IS AT STAKE?
The right to privacy is mostly governed by the Data Protection Act (DPA) 2017. Under s.23 of the DPA, a controller shall not collect personal data unless it is done for a lawful purpose connected with a function or activity of the controller and the collection of the data is necessary for that purpose. The consent of an individual is required before the sharing of personal data can be done and that individual must under s.23, be informed of same at the time of collection of the personal data. The DPA requires a lawful basis for processing personal data under s.28.The DPA however is silent with regards to covert employee surveillance.
The capture of personal information by a CCTV Footage will be regulated by the DPA. A strict application of the DPA would require that any monitoring be disclosed to employees in advance. Furthermore, those individuals who appear on the footage are entitled to view the footage and to obtain a copy of same. Many complaints, in this regard, were previously reported to the Data Protection Office (“DPO”). For instance, the DPO received a complaint from a Union of employees against a logistics company regarding the installation of CCTV cameras in its lorries. The Data Protection Commissioner found the cameras to be privacy-intrusive and demanded the company to remove the cameras. The decision is currently the subject of an appeal at the level of the ICT appeal Tribunal.
POST-COVID CULTURE OF REMOTE WORKING
In the aftermath of the covid-19 pandemic, we have seen a rise of remote working and developments in the information technology which allows employers to remotely have access to employees who ‘work from home’.
There can be little doubt that some employers are already monitoring work of their employees by the use of surveillance software; these can take the form of monitoring keyboard activity, email usage, social media access during working hours and other types of applications. Whilst it can be argued that this could amount to an invasion of privacy, employers may be able to justify such monitoring as a means to ensure that the company is not being prejudiced at the expense of the flexibility provided to the employee to work in the comfort of his home.
CONCLUSION
In the event employers use this type of monitoring measures to terminate an employee on the ground of poor performance or gross misconduct, it would be interesting to see how the Court would approach any attempt to adduce such evidence by the employer to justify the termination. Admissibility will rest upon the facts of each case and the Court will determine each case on its own merits.
