EXECUTIVE REPORT
The ICO website offers advice on monitoring at work.
Big Brother or big bother?
Adam Bernstein offers guidance for companies using CCTV to enhance security in light of the latest data protection regulations.
Plant and equipment theft is a perennial problem. One preventative measure often adopted is CCTV and some firms will consider covert surveillance in situations such as warehouses where high-value products are stored, or entrances where general site security is important. Nevertheless, wherever cameras are installed, companies do not have free rein, especially if monitoring their employees.
Mark Stevens, a solicitor at law firm VWV, says legal issues arise from using recordings in the workplace. In particular, “Employers looking to monitor the conduct of their employees - especially through the use of covert recording - should consider their actions carefully, particularly in light of the requirements of the General Data Protection Regulation (GDPR), which became law on 25 May 2018.”
He points to a recent case that came out of Europe which considered the lawfulness - or otherwise - of surveillance within the workplace: López Ribalda and others v Spain. “A Spanish supermarket decided to install surveillance cameras after it uncovered theft at one of its stores. A number of visible surveillance cameras were installed, aimed at detecting theft by customers, as well as hidden video recorders to monitor supermarket cashiers.”
Confronted
Interestingly, Mark Stevens says that the footage showed five employees stealing items from the supermarket. “The employees were confronted and admitted to theft, after which they were dismissed. The employees pursued unfair dismissal claims through the Spanish courts, which were unsuccessful. They subsequently pursued claims at the European Court of Human Rights (ECtHR) arguing that the use of the covert video evidence in the unfair dismissal proceedings had infringed their privacy rights under Article 8(1) of the European Convention on Human Rights.” And surprisingly, they won. The ECtHR agreed that the use of covert cameras constituted a violation of the employees' right to privacy.
Mark Stevens says, “In this case, not enough had been done to safeguard the employees' rights - for instance by targeting the surveillance only to those individuals who were under suspicion, or only recording for limited periods of time.” Other safeguards might have included informing the employees of the recording and providing them with the information required under Spanish law.
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UK law, for the moment at least, reflects that of EU legislation. In the UK, the data regulator is the Information Commissioner's Office (ICO) and its guidance says CCTV is covered by the Data Protection Act. This gives individuals the right to see information held about them, including CCTV images. It also sets rules which CCTV operators must follow when they gather, store and release images of individuals. The ICO says operators must let people know they are using CCTV. Signs are the most usual method and they must be clearly visible, readable and should include the details of the organisation operating the system, the purpose of the surveillance (if not obvious) and who to contact about the scheme. Conversations between members of the public should not be recorded.
The operator must also ensure someone in the organisation has responsibility for the CCTV images, deciding what is recorded, how images should be used and who they should be disclosed to. There must also be clear procedures on how to use the system and when to disclose.
In terms of covert monitoring, the ICO says it “should not normally be considered. It will be rare for covert monitoring of workers to be justified. It should therefore only be used in exceptional circumstances," an example being suspected criminal activity. The ICO has a page on its website (
ico.org.uk/media/for- organisations/documents/1542/cctv-code-of-practice.pdf) concerning monitoring at work. It says this can be used for a number of reasons; however, if CCTV is installed, the operator should make sure employees and others are aware. This is usually done by displaying signs explaining the camera locations. Staff should be given the reason for the monitoring.
Importantly, under Data Protection legislation, if the cameras are used to prevent theft, the operator cannot then use the footage for another reason, such as recording entry and exit of individuals from the premises. Recorded images should also only be viewed in a restricted area, such as a designated secure office, and monitoring images from areas where an individual would have an expectation of privacy should be restricted to authorised personnel. Lastly, the ICO says that firms should have a retention policy, keeping the images for as long as necessary to meet the purpose of recording them.
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