Big brother or big bother?

Compliance


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