Whilst every business has a right to take measures to protect its property and to satisfy itself that employees are conducting themselves in a manner not to damage trust and confidence in the working relationship, when considering whether or not to use covert surveillance, such as CCTV, to investigate suspected criminal activity or very serious misconduct amongst employees in the workplace, employers must have regard to human rights legislation which provides for a qualified right to respect for private and family life. Any interference with employees’ privacy can only be justified where the interference is a proportionate means of achieving a legitimate aim. The employer must also comply with its duties under the General Data Protection Regulation in order to process information about the employee lawfully and fairly.
The European Court of Human Rights, when considering whether the human rights of a group of employees working in the Spanish supermarket had been breached, found that the covert video surveillance used for the purpose of detecting thefts in the workplace was not targeted at particular individuals, but rather it filmed all the staff working on the supermarket's cash register over a period of weeks, without any time limit and during all working hours. For this reason, the intrusive way the CCTV was used was disproportionate and contrary to Spanish human rights legislation. The decision by the Spanish employer to install covert surveillance was based on a general suspicion against all staff in view of the stock irregularities which had been discovered.
By contrast, in another European case, covert video surveillance was found not to have infringed individual employees' privacy rights. This was because, in that case, only particular employees under suspicion were captured by CCTV. The surveillance had been carried out over a limited period of two weeks and had only covered the area surrounding the cash desk and the areas of the shop accessible to the public.
For UK employers, a data protection impact assessment is required when carrying out large-scale systematic monitoring of a publicly accessible place. The impact assessment should help employers to identify whether or not CCTV is necessary and proportionate, and it should also help employers to identify specific issues, such as exactly where the cameras will be located, when they will be recording and for how long the covert CCTV will be installed.
Guidance from the UK’s Information Commissioner’s Office (“ICO”) for employers on compliance with UK data protection legislation, says that it would be rare for covert surveillance of employees to be justified and it should only be used in exceptional circumstances, such as where the employer has grounds for suspecting criminal activity, such as theft, is taking place and where notifying the employees of the use of surveillance would prejudice the prevention or detection. Evidence collected via covert surveillance should only be used where the misconduct amounts to gross misconduct or misconduct putting the health and safety of others at risk. The surveillance still has to be proportionate in all the circumstances, so should only be used in areas of the premises where it is suspected the criminal activity is taking place. When used in such circumstances in the short term, CCTV use is likely to be a proportionate means of securing evidence or preventing further crime or serious misconduct.
Guidance from the UK’s ICO (The employment Practices Data Protection Code) also recommends that, where footage is used in disciplinary proceedings, the worker should be allowed to see and respond to the CCTV images. A still image is unlikely to be sufficient evidence in disciplinary proceedings.