Watch out for employees’ rights when using CCTV in the workplace
Closed-circuit television, or CCTV, is the use of video cameras to transmit video signals to a specific place, for example, an employer’s monitoring station. It differs from normal television in that the video signal is not openly transmitted. It is used extensively in environments such as banks and casinos as a means of monitoring the activities of customers, employees or others using the premises. In the case of employees, one application of CCTV is to allow companies to monitor whether employees are conforming to policies, for example, only smoking in smoking-designated areas.
Getting the balance right
With CCTV there is an important balance to be struck between the rights of employers and their employees’ rights to privacy. This need for balance is well illustrated in the case of Patricia Heffernan versus Dunnes Stores.
Dunnes Stores operates a Value Club scheme whereby the customer’s value card is swiped at the till and points are earned relating to the value of purchases made. These earned points can be converted to vouchers which in turn can be redeemed against future purchases.
The Employment Appeals Tribunal ruled that the employee had been unfairly dismissed even though the employee had accepted that over a period from 2008-2009 she had applied points to her own card from purchases made by customers. In its 2010 determination (ref. UD 1355/09) the Tribunal ruled that Dunnes Stores had acted unreasonably. Part of the evidence cited for this was that they had “conducted a covert operation involving CCTV footage studies”. Moreover, the Tribunal questioned if Dunnes Stores “was correct in allowing the claimant to continue using her Value Club Card in the manner she was without generally notifying the workforce that such card use was unacceptable”.
Covert Surveillance Not Allowed
So employers need to be very careful in their use of CCTV. Covert surveillance as a normal matter of course is not permitted, as CCTV footage is considered personal data under the Data Protection Acts of 1988 and 2003. (All employers are considered data controllers under the Acts as they gain and hold personal data concerning their employees.) The Office of the Data Protection Commissioner has advised that “covert surveillance is normally only permitted on a case by case basis where the data is gathered for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders. This provision automatically implies an actual involvement of An Garda Síochána or an intention to involve An Garda Síochána”.
How one employer fell foul of the guidelines is well illustrated in a complaint made in early 2008 to the Office of Data Protection Commissioner by two employees who were concerned at “their employer’s intention to use CCTV recordings for disciplinary purposes” (case study 10). Their employer had used CCTV images to compile a log of when employees had entered and exited from their workplace. However, the employer had never told its employees the purpose of the CCTV cameras. After the Office informed the employer of their obligations under the Data Protection Acts the employer accepted the views of the Office and informed the employees that the company “was not in a position to pursue the matter of potential irregularities in attendance as it could not rely on CCTV evidence obtained in contravention of the Data Protection Acts” (case study 10). As the Office of the Data Protection Commissioner says, “Transparency and proportionality are the key points to be considered by any data controller before they install a CCTV system”.
Communicate Benefits to Employees
If an employer wishes to use CCTV surveillance as a matter of course, it is recommended that they obtain their employees’ consent to being monitored. The chances of obtaining employees’ consent will be helped by pointing out to employees the benefits of CCTV surveillance. These benefits include the ability to identify bullying and identification of when colleagues are not working (who should be). Presuming that such consent is obtained, employers should also post signs in prominent positions stating that CCTV cameras are in use.
Now, if a company has appropriately publicised CCTV monitoring, and if an employee is seen on CCTV breaking some rule, then the company is entitled to use the footage as part of a disciplinary process. The important point to note though is that the CCTV monitoring must have been “publicised”. And, even in that type of scenario, the employee should also be given the opportunity to review any footage being used against them and to also comment on it.
Summary
Here are some guidelines for employers considering the use of CCTV:
- Be open and reasonable
- Ask for consent for CCTV monitoring, clearly explaining the context and rationale
- Display prominently that the premises are being monitored
- Minimise intrusion of employee privacy
- Provide employees with footage that might be used against them in the disciplinary process
If you would like to discuss any of the issues mentioned here, call Mary Cullen or Liam Barton at Insight HR on 056 7701060 in complete confidence.
