Using CCTV at work is subject to data protection and human rights law, and could also breach your duties to your employees. Check out the pluses and minuses of using CCTV, and what you have to do to stay within the law.
Small Business Update
This update was published in Small Business Update - January 2015
Small Business Update from Atom Content Marketing is a monthly magazine for people running their own business. Articles vary in length and cover 'hot topics', issues of importance, and current affairs.
There are many legitimate business reasons why employers monitor employees using CCTV, and monitoring can be lawful. The reasons include:
- to keep employees safe and secure by preventing violence or theft;
- to prevent pilfering, malingering, deliberate damage or other misconduct;
- to ensure – and record – that health and safety procedures are being followed;
- to monitor and improve productivity;
- (in some sectors such as financial services) to comply with regulatory requirements.
When using CCTV three key areas of law must be observed. First, employment law says employers must not act in a way which is likely to destroy or damage the mutual trust and confidence between an employer and employee. If they do, an employee can claim constructive dismissal – that their employer has done something so fundamentally inconsistent with that mutual trust and confidence that the employee is entitled to resign, treat themselves as having been unfairly dismissed and claim compensation.
Second, data protection laws and principles regulate how an employer can collect and process ‘personal data’ about employees – which includes video footage of them recorded using CCTV cameras. Particularly, these laws and principles give employees the right to be told which data are held on them and the reasons those data are being collected and processed by serving a ‘subject access request’ on the employer. There are also limits on how long such data can be held.
Finally, employers – particularly in the public sector – should respect their employees’ rights to privacy under human rights law by making sure their CCTV monitoring is proportionate and not too intrusive.
To avoid problems with these laws, unless you are using CCTV in particular circumstances, such as to detect a crime or catch and prosecute those responsible, or to comply with a regulatory requirement, you should let employees know in advance:
- that you are introducing CCTV;
- the reasons why;
- the circumstances in which monitoring will take place;
- the nature of the monitoring;
- how information obtained will be used;
- how their rights, eg to privacy, will be protected.
Employees should be given the opportunity to discuss these and make their views known. After consultation, the employer’s procedures and practices should be included in a written CCTV policy document that is explained to employees in their induction and ongoing training, and is readily available to them.
The Information Commissioner’s Office (ICO) Employment Practices Code contains further detailed guidance and recommendations, including:
- Carrying out an impact assessment to determine the pros and cons of CCTV monitoring compared to alternative means of achieving the same objectives, including the administration and record-keeping required – particularly if employees make subject access requests. This should include an assessment of where the cameras will actually be – for example, cameras monitoring the shop floor or open-plan offices are less likely to breach privacy rights than CCTV in a restroom, and cameras that constantly monitor one or a few employees in an area are more likely to be considered intrusive than those that monitor all employees in that area roughly equally.
- Training those responsible for CCTV monitoring to ensure legal compliance – particularly in relation to confidentiality of employee data.
Secret CCTV filming should be avoided except in very exceptional circumstances, such as to help prevent physical injury or a serious crime. It should be authorised by senior management, and be limited to a specific period of time and, as far as possible, to specific people. The risk of intrusion on innocent employees should be balanced against the objectives of the secret recording – particularly if it is to take place in a private area such as a restroom.
Evidence of other wrongdoing obtained by covert recording is unlikely to be admissible unless it amounts to gross misconduct.
Overall, introducing CCTV can be a complex and fraught step, with potential for reputational damage if employees denounce their ‘big brother’ employer. Specialist legal advice is strongly recommended.
© Atom Content Marketing 2015