Big Brother is Watching You

We have posted before about the UK’s fondness for CCTV surveillance and the Information Commissioner’s Office (ICO) has recently published an updated code of practice for CCTV and other types of surveillance cameras. That article, which you can read here, triggered a number of enquiries from clients so we’re taking the opportunity to provide some further advice here.

The main implications of installing a CCTV system recording employees at work are:

  • Compliance with Data Protection legislation
  • Undermining trust and confidence, which could give employees a potential constructive unfair dismissal claim
  • Proper use in disciplinary investigations and hearing

1. Compliance with Data Protection Legislation

Breach of the Data Protection Act can lead to substantial fines being imposed, though usually the Information Commissioner who enforces the Act will issue a notice requiring the business to put things right before it resorts to levying fines. If the damage has already been done, as in the case where an extract from a company’s CCTV recording ended up on You Tube, a fine may be the only option.

Things that you particularly need to have in mind when installing CCTV are:

  • whether it will be effective
  • is it proportionate to the issue of  on-going thefts or whether some other step, such as better lighting, might help
  • whether system data can be readily given to police and to employees caught on the recording
  • that the CCTV is not recording adjacent streets or neighbouring property
  • how you will ensure access to recordings is restricted (so they don’t end up in the wrong place)
  • what your policy will be on retention and deletion of recordings; what is a reasonable period to keep a recording – e.g. if it is designed to catch theft, how soon would a theft typically be discovered
  • since under the Act you must let people know when they are in an area where a surveillance system is in operation, where will you site notices telling them they are under surveillance (on entry into yard and in the yard). Note that workers should be aware that they are being monitored where there is ongoing surveillance of a well-used area. Covert surveillance for a temporary period where a specific limited area is being monitored for a specific investigation may be permissible. You should be satisfied that there are grounds for suspecting criminal activity and that telling people about the monitoring would make it difficult to prevent or detect it.
  • how will you deal with employee subject access requests. Employees can see CCTV recordings of themselves as part of a Data Protection subject access request on payment of £10.

The Information Commissioner’s Office has published a checklist at the back of its Code of Practice which also gives wording which could be used on notices.

If you have a data protection policy in your employee handbook, you should consider whether it needs amending to cover CCTV.

2. Constructive Dismissal

So long as you have considered the sorts of issue above and are using, retaining and deleting the recordings in compliance with the data protection principles and you have a legitimate business reason for using CCTV (prevention of theft and health and safety would be such reasons) and you have kept employees informed, the use of CCTV in itself should not give rise to a breach of the relationship of trust and confidence such as to entitle the employee to resign and claim constructive dismissal. It would be sensible therefore, if installing ‘permanent’ CCTV, to communicate with all employees to tell them what you are doing (assuming this is a permanent installation rather than a specific time-limited investigation designed to catch a specific thief). Tell them that for health and safety and prevention of crime reasons you are installing CCTV; you have considered other options but decided this will be the most effective; tell them that access will be strictly limited [identify who]; tell them that normally recordings will be deleted after a defined period. Invite comments and give a considered response to their feedback or any questions they may have.

As noted above, if you are temporarily using CCTV to catch a specific thief, and therefore telling everyone would defeat the object, and you have considered alternatives first, there should be no breach which would entitle employees to complain let alone resign – unless, for example, the cameras were installed in washrooms.

Misuse of CCTV footage could give rise to constructive dismissal claims e.g. allowing access to too many employees, with the result it ends up on You Tube; showing an extract to a staff gathering to mock a colleague, etc.

3. Use in Disciplinary Proceedings

If you intend to rely on CCTV footage in disciplinary proceedings, you must, first, ensure the employee is able to see the footage as part of the investigation process and is invited to comment on what can be seen. You must ensure either that the employee has a copy in advance of any disciplinary proceeding or that it is available to be viewed (and, unless the employee concedes what the recording shows, is viewed) in the hearing. Failure to do so could affect the fairness of any dismissal.

If you have any questions about the above and you are an Ellis Whittam client, please don’t hesitate to contact your Adviser.

Director of Legal Services

James Tamm

Whether you’re facing an immediate challenge or just want the reassurance of an expert second opinion, we’re here to offer clear, commercial advice so that you can focus on what you do best.

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