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Use of CCTV in the workplace in the UK: its roles and its risks

March 2014

What use can CCTV have for employers?

Employers may install CCTV for various reasons including:

  • Security: to prevent theft, violence and other crime.
  • Health and safety: to check that health and safety rules are being complied with and/or so that footage is available in the event of a specific breach.
  • Protecting business interests: e.g. to prevent misconduct.
  • Assessing and improving productivity
  • Compliance with legal and regulatory obligations: this is more likely in the financial services sector.

cctv camera pointing at a building
Risks

There are three key legal obligations which UK employers must keep in mind when using CCTV:

  • Mutual trust and confidence: employers should not act in a way, without reasonable and proper cause, which is likely to destroy or damage the relationship of mutual trust and confidence between themselves and employees. If they do so, there is a risk that employees will resign and claim constructive unfair dismissal.
  • Data Protection Act 1998 (DPA): employers should act in accordance with the DPA and its eight key principles. The Information Commissioners Office (ICO) enforces the DPA and breach of it may lead to sanctions and bad publicity for employers. Employers should also be conscious of the increased risk of receiving subject access requests (SARs) from employees where monitoring is used, as employees may become nervous about the data which their employer holds and are more likely to apply to the ICO for disclosure of such data. It will inevitably waste valuable time dealing with and responding to SARs and ICO investigations.  
  • Human Rights Act 1998 (HRA): employers in the public sector should be particularly aware of the right to privacy which their employees have under the HRA as it applies directly to them. However, it is still important for employers in the private sector to consider this right, and to ensure their monitoring is not disproportionate or intrusive, as tribunals and courts are expected to take it into account when making decisions.

Managing the risks

Some practical tips for avoiding the risks and striking the right balance are as follows:

  • Impact assessments: The ICO recommends carrying out an impact assessment which can be invaluable in justifying the use of CCTV. Whilst assessments will vary on a case by case basis, we would recommend always documenting the assessment in case proof is later required. The assessment should identify:
    • the purpose behind the monitoring and likely benefits;
    • likely adverse impacts;
    • alternative ways in which the purpose might be achieved (e.g. supervision or training);
    • the obligations which will arise from monitoring (e.g. notifying employees, managing data in accordance with the DPA, risk of SARs etc.); and
    • ultimately whether the decision would be justifiable.
    pen and paper
  • Ensure those involved in monitoring are aware of their obligations: these individuals should also be subject to strict confidentiality and security obligations.
  • Make employees aware of the nature and extent of the monitoring and the reasons for it in a written policy:
    • it is advisable to have a policy in place which is readily available for employees (e.g. on the company intranet) and to provide training on it. It is useful to get employees to sign to acknowledge they have read the policy, however, note that consent should not be relied upon and there is no substitute for carrying out an impact assessment;
    • if an employer makes clear and can explain their reasons for monitoring, employees are unlikely to object. If, however, it is stated that CCTV will be used to detect crime and it is then used for other reasons e.g. to monitor the amount of work done by employees, there is a risk that employees may resign and claim unfair constructive dismissal for breach of trust and confidence.
  • Be clear what levels of privacy an employee can and cannot expect: the use of CCTV in break areas, toilets and changing rooms would be hard to justify under any circumstances. In an area like a public entrance, however, where expectations of privacy are low, CCTV is more easily justified. An example of a situation which might fall somewhere in the middle would be where CCTV monitors the entrance to a department but a number of workstations fall within the camera's view, meaning certain individuals' everyday activity is monitored. In this case, it may be that the employer should look into the possibility of adjusting the camera angle to avoid disproportionate monitoring.
  • Give employees the chance to be heard: ensure employees can voice their concerns in confidence and are given the chance to explain or challenge any footage where it is used as part of a disciplinary process. If this is not done, there is a risk an employee will seek to obtain an enforcement notice from the ICO preventing the use of such data. Where footage is critical to a disciplinary investigation, it would be frustrating to lose the right to rely on such evidence in these circumstances.
  • Store and process information in accordance with the DPA: the data captured must be relevant, not excessive, securely stored and not kept for longer than is necessary. This will again help to ensure that individuals’ rights are protected and that the evidence gathered can later be relied on if necessary. Some employers may need to provide details to the ICO of how they handle personal data and the ICO can be contacted directly for further advice regarding this.
  • Deal with SARs promptly: employees have the right to request a copy of any CCTV footage relating to them and employers should have a clear system in place in order to respond to any SARs within the 40 day time limit. See our article Use of SARs in employment disputes for further information on how employees can make use of this right and how best employers can manage the risk.

question marksWhen is covert monitoring justifiable?

Covert monitoring (where the individual is not aware the monitoring is taking place) will only be justifiable in exceptional circumstances where there are grounds to suspect criminal activity or extremely serious malpractice. If such monitoring is undertaken it would be advisable to ensure that:

  • senior management authorises its use;
  • it is only carried out for a set timeframe and as part of a specific investigation;
  • the risk of intrusion on innocent workers is considered;
  • areas where privacy is expected remain private; and
  • limited numbers of people are involved.

If information obtained during covert monitoring inadvertently brings up evidence of other malpractice, this evidence should not be used against employees unless it is a case of serious gross misconduct. Where the misconduct is minor in nature, use of the 'secret' footage to discipline individuals will not be allowed.

Conclusion

If employers do wish to use CCTV to monitor their workforce, it is important to consider employee rights and the risks involved. Although the use of CCTV has its advantages, it can be very time consuming dealing with employee complaints and ICO investigations.  It can also lead to reputational damage and mean that employers are prevented from relying on data which would otherwise have been very useful to them. By following the simple steps above, in particular carrying out an impact assessment, communicating with employees and processing data in accordance with the DPA, the adverse impacts can be avoided and the benefits maximised.

If you have any questions on this article or would like to propose a subject to be addressed by the Global Data Hub please contact us.

CCTV in the workplace
Amy Sinclair

Amy Sinclair         

Sally Annereau

Sally
Annereau
         





Amy and Sally look at the use of CCTV in the workplace, how it can be used to an employer's advantage and how best to manage the associated risks.

"CCTV is one way in which employers can track the performance and behaviour of their employees in order to ensure that their business interests are protected. But as the use of CCTV continues to increase, it is important that employers are aware of and manage the associated risks."