Let’s take a look at the usage of CCTV systems in our workplaces, how we can use it to an employer’s benefit and how to manage the risks. What kind of uses can CCTV systems have for employers? Employers are installing CCTV systems for various reasons:
- Security: to prevent crime, theft, and violence.
- Safety and health: to check that safety and health rules are being complied with and so that footage will be available in case of a specific breach.
- Protecting the interests of your company: preventing misconduct, for instance.
- Improving and assessing productivity & complying with regulatory and legal obligations: especially in the financial sector.
There are 3 important legal obligations and regulations, which employers in the United Kingdom need to bear in mind when installing CCTV systems:
- Confidence and mutual trust: employers must not act in a way that is likely to damage or destroy the relationship of confidence and mutual trust between themselves and workers. In the event of doing so, employees may resign and even claim constructive unfair dismissal.
- DPA 1998 or Data Protection Act 1998: employers need to act in accordance with the Data Protection Act 1998 and its 8 fundamental principles. The ICO or Information Commissioners Office enforces the Data Protection Act 1998 and breach of it could lead to bad publicity and even sanctions for companies and employers. Employers must be aware of the high risk of receiving SARs or subject access requests from workers where monitoring is being implemented, as staffs might become nervous about the data and information that their employer is gathering and holds and are actually more likely to apply to the Information Commissioners Office for disclosure of such data. It will unavoidably waste time dealing with and responding to subject access requests and Information Commissioners Office investigations.
- HRA 1998 or Human Rights Act 1998: businessmen within the public sector need to be exceptionally aware of workers’ right to privacy, which employees have under the HR. However, it is very important for businessmen in the private sector to keep in mind this right, and to safeguard that the monitoring is certainly not disproportionate or even intrusive, as courts and tribunals are expected to take this into account when making decisions.
Some practical tips for striking the right balance and avoiding the risks are as follows:
- Impact evaluations: The Information Commissioners Office recommends
carrying out an impact evaluation, which can be highly valuable in explaining
the usage of a CCTV system. Whilst evaluations will surely vary on a case-by-case
basis, it is always advisable documenting the evaluation in case evidence is
later needed. The evaluation needs to identify:
- the goal behind the monitoring as well as the benefits;
- likely adverse impacts;
- other ways in which the objective could have been achieved (like for example by training or more supervision);
- the responsibilities that will in all likelihood arise from monitoring (for instance notifying workers, management of data, risk of SARs…); and
- ultimately if the decision is justifiable.
- Guarantee those involved in the monitoring process are aware of their duties: these individuals must be subject to security obligations and very strict confidentiality.
- Make personnel aware of the extent and nature of the CCTV monitoring and the reasons for it in an official, written policy:
- it is recommended to set a policy that is available for workers (for example through the firm’s intranet) and to provide adequate training on it. Employees should sign it in order to acknowledge they have actually read the policy, but note that consent must not be relied upon and there is no other substitute for carrying out an impact evaluation;
- when an employer explains clearly and can display the reasons for the monitoring, workers are very unlikely to object. But if it is stated that a CCTV system will be utilized to detect theft and it is later utilized for other reasons, such as monitoring the number of working hours carried out by the personnel, there will be a risk that staffs might claim unfair constructive dismissal and resign for breach of confidence and trust.
- Be clear about the levels of privacy a worker should and should not expect: the usage of a CCTV system in break areas, changing rooms and toilets will be difficult to justify. However, in an area of the premises like a public entrance, where expectations of privacy are already naturally low, a CCTV system is more justifiable.
- Provide your personnel with the opportunity to be heard: guarantee workers can express their concerns in confidence and are provided the opportunity to explain any footage used as part of a disciplinary process. In case this is not done, there will be a risk a staff member will seek to obtain an enforcement notice from the Information Commissioners Office preventing the usage of such data. Where footage is crucial to a disciplinary investigation, it will be frustrating not having the right to rely on the evidence in these circumstances.
- Process and store information in accordance with the Data Protection Act 1998: the data obtained needs to be relevant, securely stored and not kept for longer than is strictly necessary. This will again help in guaranteeing that individuals’ rights are properly protected and that the proof obtained can later be relied on if needed. Some businessmen might need to provide details to the Information Commissioners Office of how they manage personal data and the Information Commissioners Office can be contacted directly in case there is a need for further advice regarding this.
- Deal with subject access requests promptly: workers have the right to actually request a copy of a CCTV footage relating to them and businessmen need to have a clear system in place to respond to any subject access requests within the forty-day time limit.
What is covert monitoring and when is it justifiable?
Covert monitoring is a situation where the individual in question isn’t aware that he or she is being monitored, and such instances will only be justifiable under exceptional circumstances, with grounds to suspect theft or criminal activity or very serious malpractice. In the event that such monitoring is undertaken, it is highly advisable to make sure that:
- Management authorizes its usage;
- It’s only carried out for a prearranged time-frame;
- The risk of intrusion of other employees is properly considered;
- Areas of the premises where privacy is to be expected remain private; and
- limited numbers of other employees are involved.
In case information acquired over the process of covert monitoring accidentally brings up proof of other unrelated malpractice, this proof must not be used against other workers unless it’s a case of extremely serious misconduct. If the misconduct is minor in nature, usage of this footage in order to discipline employees won’t be allowed.
Summary and conclusion
If employers and businessmen do wish to utilize CCTV systems to monitor their workspace and employees, it is imperative to consider workers’ rights and risks involved. Although the usage of a CCTV system has its benefits, it can happen to be extremely time-consuming due to staff complaints and Information Commissioners Office investigations. It can lead to reputation damage and result in employers being prevented from relying on the data, which could have been really useful to them. By following the easy and simple steps above, especially doing an impact evaluation, communicating with workers and processing data in accordance with the Data Protection Act 1998, the adverse consequences can easily be avoided and the benefits optimized.