Big brother or big bother?
Back in 2015 the Coventry Telegraph reported that Jaguar Land Rover employee Simon Wensley had been caught stealing car parts worth around £2m over a four-year period from 2010 to 2013.
The theft was only discovered because Jaguar’s investigation department noticed large numbers of parts were being ordered for no apparent reason. Theft is often considered one of the most common crimes in relation to road haulage.
The most popular items stolen include consumer electronics, car parts, cosmetics and clothing. Clearly, then, there will be situations generally where employers consider covert surveillance appropriate.
This is not about telematics in the vehicle, but the installation of covert cameras in, for example, a warehouse where high-value products are stored, and on entrances where general site security is important. But wherever cameras are installed, employers do not have free rein.
Mark Stevens, a solicitor at law firm VWV, says that there are legal issues that arise from using recordings in the workplace. In particular, he says that “employers looking to monitor the conduct of their employees - especially through the use of covert recording - should consider their actions carefully, particularly in light of the requirements of the General Data Protection Regulation (GDPR), which became law on 25 May 2018.”
He points to a recent case that came out of Europe which considered the lawfulness - or otherwise - of surveillance within the workplace - López Ribalda and others versus Spain. He said: “In this case a Spanish supermarket decided to install surveillance cameras after it uncovered theft at one of its stores. A number of visible surveillance cameras were installed, aimed at detecting theft by customers, as well as hidden video recorders to monitor supermarket cashiers.”
The footage collected showed five employees stealing items from the supermarket. “The employees were confronted and admitted to theft, after which they were dismissed”, says Stevens.
European Court of Human Rights
The employees pursued unfair dismissal claims through the Spanish courts, which were unsuccessful. They subsequently pursued claims at the European Court of Human Rights (ECtHR) arguing that the use of the covert video evidence in the unfair dismissal proceedings had infringed their privacy rights under Article 8(1) of the European Convention on Human Rights.” And, they won.
As the case report detailed, the ECtHR determined that, while the employer was concerned about thefts and was entitled to investigate, the use of covert recording in this way breached Spanish data protection law and the guidance issued by the Spanish data protection agency. Stevens outlines where the employer went wrong: “In this case, not enough had been done to safeguard the employees’ rights - for instance by targeting the surveillance only to those individuals who were under suspicion, or only recording for limited periods of time.”
He adds that the ECtHR also noted that other safeguards might have included informing the employees of the recording and providing them with the information required under Spanish law. UK law, for the moment at least, reflects that of EU legislation.
In the UK, the data regulator, the Information Commissioner’s Office (ICO) guidance states that “covert monitoring should not normally be considered. It will be rare for covert monitoring of workers to be justified and should only be used in exceptional circumstances.”
Examples of exceptional circumstances include a specific investigation into suspected criminal activity, where openness would be likely to prejudice the prevention or detection of crime or equivalent malpractice or the apprehension or prosecution of offenders.
Data protection assessments
But as Stevens points out, “in order to make an assessment of whether or not prejudice is likely, employers must conduct a detailed investigation and obtain senior management approval.” In addition, he says that under GDPR, employers must conduct data protection impact assessments when undertaking processes that are likely to result in a high risk to the rights of data subjects (that is, those whose personal data is being collected).
As he cautions, covert monitoring will fall within the scope of this obligation. So, employers are placed under an additional obligation when considering covert surveillance. His advice to employers wanting to use video surveillance is they have a policy in place setting out what CCTV monitoring takes place; why it has been deployed; and how the recordings are used.
The Information Commissioner
The Information Commissioner’s Office advises that CCTV monitoring can be used in the workplace for a number of reasons, but if CCTV is installed the employer should make sure employees are aware it. This is usually done by displaying signs to say where the cameras are located.
Workers should also be given the reason for the monitoring. Signs should be clear, visible and readable; contain details of the purpose of the surveillance and who to contact about the scheme; and include contact details like website, telephone number or email address.
Importantly, under data protection legislation, if an employer tells employees that the reason cameras are used is to prevent theft, the employer cannot then use the footage for another reason, such as recording entry and exit of workers from the workplace.
Recorded images should also only be viewed in a restricted area, such as a designated secure office. The monitoring or viewing of images from areas where an individual would have an expectation of privacy should be restricted to authorised personnel.
By Adam Bernstein
“Keeping it in the family” sees O-licences suspended
Traffic Commissioner (TC) for Scotland, Joan Aitken has suspended three Bonnybridge-based hauliers for a “tangled family weave” that allowed one of them to operate vehicles in excess of its authorisation.
In a written decision following a May PI in Edinburgh, the TC found that Mark Valentine, boss of Valentine Haulage Bonnybridge, had used spare capacity on the O-licence of his father-in-law William Wright for financial gain. Valentine Haulage Bonnybridge was granted a standard national O-licence for two vehicles and two trailers in January 2014. Mark Valentine picked up tipper work from Tarmac, mainly around central Scotland, after being introduced by Wright, who was already a contractor for the construction materials company.
However, in September 2016, two of Valentine Bonnybridge’s vehicles were put on Wright’s licence and one of them was not de-specified until May this year - several weeks after the date of the public inquiry call-up letter. Valentine’s younger brother Martin, who had an O-licence trading as Denval Haulage, had purchased a vehicle in the belief that he would also get a Tarmac contract.
When it failed to materialise, Valentine Bonnybridge used the vehicle on Tarmac work instead. The TC said there was a tangled family weave, at the heart of which was Mark Valentine’s ambition to have a larger haulage operation than allowed.
“There is the context of familial loyalties and assistance as distinct from sale of a margin on the cowboy market,” she said. “However, the fact all of this happened between family cannot begin to excuse what was going on and Mark Valentine chose to exploit that his father-in-law had a licence with a margin.
“Unlawful operating through ‘keeping it in the family’ is not permitted and is an arrangement which strikes at fair competition and trust. “It is beyond doubt that being thwarted by a fundamental lack of the financial standing needed for an authorisation of more than two vehicles, Mark Valentine arranged to use the margin on Wright’s licence.”
. suspended the Valentine Haulage Bonnybridge O-licence for three months from 30 October, gave the company and Mark Valentine a severe warning, and refused its variation application for four vehicles and six trailers. It cannot increase its authorisation for at least 12 months following the suspension;
. suspended the William Wright trading as Wm Wright Contracts O-licence for three months from 30 October after which it will be reduced to one vehicle and one trailer. She gave Wright a severe warning as to his repute as operator and transport manager. He is not permitted to be a transport manager on any licence and is removed from the licence of Martin Valentine trading as Denval Haulage as transport manager. Satisfactory evidence of financial standing must be produced by 31 January 2019 or the licence will be revoked;
. suspended the O-licence of Martin Valentine trading as Denval Haulage for three months from 30 October. It has three months to allow a new transport manager to be appointed. She also severely warned Martin Valentine as to his repute.