In-cab cameras: the legal implications
Hauliers have good reason to use cameras as they fight to prevent crime, raise driving standards and lower insurance premiums. With camera technology becoming cheaper, smaller and more user-friendly, its rapid spread across lorry fleets is no surprise – but can surveillance become too intrusive?
DWF transport lawyer Paul Menham tells CM that if, for example, an employer is unable to justify the use of cameras when dealing with a disciplinary issue, then an employment tribunal could rule that an employee’s dismissal was unfair. He says gaining employees’ consent to surveillance is the best way to ensure its legality.
The easiest way to do this is to incorporate it into employment contracts. In some cases, there are good reasons for covert surveillance. “It would be justified because of a spate of thefts, but if they were happening only on one shift then to be proportionate and not excessive you’d use covert surveillance only on that shift,” says Menham.
Among the core principles of the Data Protection Act(DPA), which governs the use of employee surveillance, is one that states the amount of personal data you may hold should not be “excessive in relation to the purpose or purposes for which they are processed” .
Menham says that if a haulier claimed inward-facing cameras were needed to ensure drivers were taking adequate rest, a court could decide this principle had been broken. “Because you can use the tachograph for this purpose, it would be difficult to justify installing the camera on those grounds alone,” he says. Another transport lawyer, Andrew Woolfall of Backhouse Jones, argues that inward-facing cameras can be justified by employers on the grounds of protecting the lorry driver. “In a road rage incident, it might show the driver as perfectly calm,” he explains.
He says that could be important because public sympathy tends to favour car drivers as they are more vulnerable in accidents involving lorries. However, Lee Pimbley, North West regional officer for the United Road Transport Union (URTU), describes inward-facing cameras as “a massive bone of contention” for members because they feel their privacy can potentially be invaded. He says: “I think it would be an issue for industrial action. We nearly got to that stage a couple of weeks ago [in one instance], so much so that pay negotiations got put to one side.” He adds that the thought of being watched at any time of the day by management makes a stressful job even more stressful.
What are the recordings being used for?
However, Stuart Gemmell, director of risk management services company reVUE, says its research among 60 commercial and public service vehicle drivers found they were generally comfortable with this form of scrutiny, provided recordings were used for coaching, rather than disciplinary purposes.
He concedes that acceptance of inward-facing cameras will require a cultural shift, but adds: “The important thing is to take away the fear about how this information is going to be used.”
The Information Commissioner’s Office (ICO) can impose fines of up to £500,000 for breaches of the DPA, but camera infringements are more likely to result in an enforcement notice. This would order the employer to take specific action to ensure compliance. A spokesperson for the ICO says that breaching a notice could be seen as contempt of court. “That can result in criminal prosecution and is likely to lead to a fine.”
To avoid breaching the DPA, employers should conduct an impact assessment before cameras are installed to ensure a balance is struck between protecting employees’ privacy and protecting the best interests of the business.
A code of practice was published by the Information Commissioner in 2008 to help organisations carry out this assessment. It states that workers need to be consulted if they are to be monitored on camera and ways of reducing their intrusiveness need to be considered.
Employers also need to make clear why cameras are being used and in which areas of their business. If, for example, a haulier told drivers that camera monitoring in the yard was solely for security reasons, it would be wrong to use it to check if drivers were doing their daily safety checks on lorries properly.
Case study: Massey Wilcox
Massey Wilcox has installed outward-facing cameras across its 60-vehicle fleet over the past nine months, costing £180 each. “It’s solely to have evidence if there’s an accident, helping us prove innocence or guilt,” explains MD Robert Wilcox. He believes most sensible hauliers will eventually install them because of insurance considerations.
His company recently avoided a potentially expensive whiplash claim after one of its cameras showed how a motorist cut across the front of the driver on a roundabout. He says cameras also help highlight when drivers are in the wrong, so they can learn from their mistakes.
Case study: ABE Ledbury
Andy Boyle, MD of ABE Ledbury, started installing cameras in his fleet of more than 30 lorries last year following a road rage incident. One of his drivers took the keys out of a car and threw them over a hedge after the car driver pulled out in front of his truck. “He did over-react but he was on the phone to us within a couple of minutes,” recalls Boyle. “He said he wanted forward-facing cameras from that moment onwards.”
For Boyle, using such cameras is now non-negotiable. “I am confident that, by and large, drivers will be positive, but if they don’t like it they can find a job somewhere else. I’m dismissive of people’s sensibilities if it’s going against the realities of life,” he says.
Case study: DHL Supply Chain
Tim Slater, MD, Transport UK and Ireland at DHL Supply Chain, says the company has more than 4,000 forward-facing cameras installed across its fleet, which is one of the key elements of its transport strategy.
He says: “By installing cameras, we aim to make our vehicles the safest and most efficient on the road. The cameras protect our drivers and assets by allowing us to understand the circumstances of an incident, and have had a positive effect on driver behaviour both behind the wheel and as a training tool. We believe that all collisions and incidents are preventable and using initiatives such as forward-facing cameras helps us to reduce these significantly.”