CCTV monitoring of employees – is it legal?

Are you considering setting up a CCTV system to monitor what your employees are doing? Have you considered the drawbacks that might ensue and are you prepared for the legal ramifications?

Why use monitoring?

There are several reasons why employers may decide to install CCTV:

• Protecting business interests by preventing misconduct

• Compliance with legal and regulatory obligations

• Preventing theft, violence and other crime

• Assessing and improving productivity

• Verifying that compliance with health and safety rules is being achieved and that footage is available in the event of a breach.

Employers should always consider what will be gained from a monitoring exercise and weigh it against the legal and business risks.

Covert monitoring

This option will only really be justifiable in extraordinary circumstances if there are reasons to suspect criminal activity or serious malpractice that cannot be detected by other means. In the event that the employer decides to employ covert monitoring, it is a good idea to make sure that:

• the use of covert monitoring is authorised by senior management;

• the timeframe in which it is used is limited;

• it is only used as part of a particular investigation;

• consideration is given to the possibility that innocent workers may well be caught by the monitoring, and how that should be handled;

• the monitoring is not employed in areas that are expected to be private (unless there is suspicion that serious crime is going on in them);

• the number of people who are involved is limited.

It may be the case that covert monitoring intended for a specific purpose, or to uncover particular information, inadvertently finds evidence of other wrongdoing. If that happens, the evidence should not be used against the employees concerned unless a charge of serious gross misconduct could be brought because of it.

The law

Under the Data Protection Act, an employee has the right to know what personal information is being held by their employer, why that information is being held, how it will be used and who has access to it.

However, if the release of the information would breach a confidence that is owed to somebody else, involve effort disproportionate to the request or damage negotiations between the employer and employees, the employer is entitled to refuse it.

If the employee requests information from the employer and discovers that there are errors in it, they are entitled to request that the employer corrects, deletes or destroys it.

The Information Commissioner has drawn up a Code of Practice, which covers the issues related to video or audio monitoring.

The Code states that continuous “video or audio monitoring of particular individuals is only likely to be justified in rare circumstances” and, “where possible, any video or audio monitoring should be targeted at areas of particular risk and confined to areas where expectations of privacy are low”.

What should employers do?

Employers should bear in mind that mishandled monitoring exercises can cause problems with staff/employer relations and they should therefore approach the subject with care.

Unless a very good case has been made for covert monitoring, the workforce and trade unions (if applicable) should be informed of the employer’s intentions. The employer should confirm that all other less intrusive methods have been considered and ruled out.

The following practical steps should be taken:

• Let those who are going to be filmed know what is happening, explaining why this is occurring and the reasons behind it.

• Tell those being filmed what will happen to the information that is being gathered, how it will be stored, by whom it will be accessed, and why.

• Think about the possible objections that may be raised to the use of CCTV and prepare defences beforehand, including legal advice if necessary.

• Include within a privacy policy the details of the person who is dealing with the monitoring, including information on how to contact them.

• The members of staff who are involved in the monitoring should be made aware of the obligations that will be placed upon them. Strict confidentiality and security conditions should also operate.

Employer’s policy on monitoring

Before any monitoring activity is commenced, the employer needs to ensure that they have a policy in place regarding it. This may well be part of the contract of employment or it can be a separate document.

The Assessment

An assessment can help to explain why CCTV is being considered and justify its use. Documenting the assessment can be useful if proof is required later on.

The assessment should include:

• why the monitoring is taking place and what its benefits are intended to be;

• any adverse effects that have been identified or are anticipated;

• other means by which the objectives can be achieved (e.g. supervision or training);

• obligations that the employer will acquire through the monitoring and

• taking all this into account, whether the decision to install CCTV would be justifiable.

How rradar can help:

For more information about our legal services and how rradar can help your business, please visit our website and speak to our professionals today for free.

To keep up to date with current legal news and rradar services, please follow us on Twitter and Linkedin.