Rules for using CCTV evidence at disciplinary

    using CCTV evidence at disciplinary

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    Rules for using CCTV evidence at disciplinary

    Some employers may be surprised to discover that video footage captured by CCTV can constitute personal data under the General Data Protection Regulation (GDPR). This means that there are certain rules that must be followed when processing this data, especially in the context of using this footage as evidence of an employee’s misconduct.

    The following guide for employers looks at the legal considerations when using CCTV evidence at a disciplinary, from what the law says about employers recording the activities of their employees, to best practice advice around CCTV in the context of disciplinary proceedings.

    What does the law say about recording employees at work?

    By law, employers can monitor the activities of both their staff and visitors using CCTV, although there are risks associated in doing so. These risks include potential breaches of data protection law, where GDPR covers any monitoring by an employer that includes collecting and processing images. Additional risks arise out of potential breaches of an individual’s human rights, including the right to privacy, plus the risk of undermining an employee’s trust and confidence, and irreparably damaging the employment relationship because of this.

    Under GDPR, although employers are entitled to monitor employee activity, they must have a lawful basis to do so. They must also communicate in advance the fact that CCTV is installed on their premises and in active use, and the purpose for which the surveillance will be used.

    Employers may install CCTV for various reasons, although typically this will be for safety and security reasons, to help safeguard their property and staff from the threat of crime. In fact, in many cases, the signage used for CCTV will state ‘This CCTV recording system is operated for purposes of security, safety and potential prosecution’. By forewarning potential offenders of the fact that they are being filmed, it is hoped that this will act as an effective deterrent.

    What are employers allowed to record using CCTV?

    The use of CCTV in the workplace is not itself unlawful. However, this does not give an employer carte blanche to record anything and everything. Employers have a right to protect their legitimate business interests using CCTV, provided the deployment of cameras is necessary and proportionate, and addresses a pressing need that cannot be addressed by any other means. To be deemed lawful, this means that CCTV monitoring must not be either overly intrusive or disproportionate to the purpose for which it is intended to be used.

    Where staff have a reasonable expectation of privacy, any use of CCTV will almost certainly expose an employer to potential breaches of both data protection and human rights laws, as well as breach of the implied duty of mutual trust and confidence between the parties. For example, the use of CCTV in either toilets, changing rooms or break areas would be hard to justify under any circumstances on the grounds that this would be far too intrusive and an invasion of privacy. In contrast, in public areas — such as a lobby, lift or the entrance and exit points of a building — where expectations of privacy are low, CCTV is far more easily justified.

    An example of a scenario which might fall somewhere in the middle would be where CCTV monitors the entrance to each department of a workplace, but a number of workstations fall within the cameras’ view. Given that this would inadvertently result in the everyday activities of certain individuals being constantly recorded, steps would need to be taken, for example, adjusting the camera angle, to avoid any disproportionate monitoring.

    In the context of covert CCTV surveillance, where cameras are secretly installed, this will only be justifiable in exceptional circumstances. This could be, for example, where there are grounds to suspect criminal activity or serious malpractice, where to notify staff of hidden CCTV would jeopardise a criminal or regulatory investigation. However, even in these circumstances, any covert surveillance should only be targeted at those under suspicion, while still ensuring that areas where privacy is expected remain private. Covert surveillance should also only be undertaken for limited periods and as part of a specific investigation.

    In all other cases, employers must ensure that they display visible CCTV signage in all areas where surveillance is taking place, explaining that CCTV is in use and the reasons for this. This signage should also provide legible details of the organisation or person responsible for the CCTV system and how they can be contacted. This is because any data subject, where footage has been obtained of them in which they are identifiable, has the right of access to this data.

    Using CCTV evidence at a disciplinary

    Employers can often be tempted to use information captured on CCTV for all kinds of purposes, and while many have justifiable reasons for deploying CCTV systems, such as for the prevention and detection of crime, any further use of personal data captured in this way will be unlawful under data protection law. This can include using CCTV evidence at a disciplinary.

    In accordance with the principles of fairness and transparency under GDPR, employers are only permitted to process any personal data obtained by them for the purpose(s) for which it was collected. This means that if CCTV has been installed for safety and security reasons, with signage to this effect, it would not be fair and lawful to use the footage for any other reason. This will be the case, even if the CCTV footage provides clear evidence of misconduct on the part of an employee, and even if this misconduct was only inadvertently discovered during the course of viewing footage for the purpose of crime prevention or detection.

    This essentially means that CCTV footage can only be used by employers in a disciplinary context where they have clearly communicated to staff in advance that they they are being monitored, for example, to manage employees’ performance, from the amount of work that they do to potential misconduct matters. The employer must also be able to justify using CCTV to monitor employee activities for these purposes, where it may be difficult to show a need for such oppressive methods, if alternative methods are available, such as human supervision.

    If an employer suspects an employee of breaking the law and letting them know about it would make it harder to detect the crime, the employer can lawfully monitor those involved without their knowledge, but only as part of a specific investigation. In these circumstances, any relevant footage could then be used as evidence against the employee to justify dismissal for gross misconduct, although these types of scenarios are likely to be exceptional. Further, if evidence of other minor misconduct is inadvertently revealed from any covert CCTV footage, this should not be used against an employee in a disciplinary context.

    Legal risks for employers using CCTV evidence at a disciplinary

    In many cases, the use of CCTV evidence at a disciplinary hearing will be unlawful, thereby giving rise to a number of both legal and practical risks for the business, including:

    • an infringement of GDPR: if a business is found to be in breach of the GDPR, they could be liable to large fines, bans on data processing and bad publicity. This means that employers must ensure that, among other things, they have a lawful basis for processing data and that any data is not used for a purpose different to the one for which it was intended;
    • a violation of human rights: if the nature of any CCTV monitoring is overly intrusive, including constant monitoring for the purposes of detecting any minor misconduct, this is likely to constitute a
    • breach of an employees’ right to privacy;
    • a breach of employee trust: if CCTV is installed without an employee’s knowledge, or CCTV evidence is used for a different purpose to that which the employees were made aware, this could easily erode any trust and confidence in the employer. If the employee feels forced to resign because of this, this could result in a claim for constructive dismissal;
    • an unfair decision to dismiss: if CCTV is installed or used unlawfully, including the unlawful use of CCTV evidence in the context of a disciplinary hearing, and an employee is dismissed because of this, they may have a claim for unfair dismissal.

    Best practice advice when using CCTV at work

    There are a number of best practice steps that employers can take to ensure that any use of CCTV is lawful, and as a means of minimising the risk of legal proceedings, especially when it comes to using CCTV evidence at a disciplinary UK, including:

    • Carrying out a data protection impact assessment prior to CCTV deployment to weigh up whether the benefits of using CCTV justify the adverse impact on employees, and assessing any alternative means that can be deployed, such as human supervision and training
    • Keeping a record of this assessment in the event of any legal proceedings
    • Being fully transparent with staff about how CCTV is being used and where
    • Providing clearly visible and legible GDPR-compliant signage
    • Providing a workplace policy setting out the purpose(s) for which CCTV will be used, including the possible use of covert surveillance where an employee is suspected of a crime.

    But before an employer can monitor the activities of their staff and visitors using CCTV, or even consider using any footage obtained at a disciplinary hearing, they must first register as a data controller with the Information Commissioner’s Office (ICO). This will require the employer to outline the purpose of using CCTV in the workplace and pay a data protection fee.

    The employer must also tell staff and visitors that they may be recorded, typically through displaying signs, which must be clearly visible and legible; ensure that footage is kept securely, controlling who has access to this; and only keep the footage for as long as is strictly necessary, typically no more than a few short months, unless there is a criminal investigation.

    Where the employer is wanting to use CCTV to monitor and manage its workforce, including any misconduct matters which may arise, this must be set out in writing within a workplace policy. Employees should also be made aware of this policy during the course of any induction procedure at the start of their employment. However, the use of a written policy or statement, warning employees that their work activities are being recorded and may be used as evidence against them, does not necessarily justify this level of data processing.

    In cases where the use of CCTV data in a disciplinary context can be more easily justified, where footage has been obtained because the employee was suspected of committing a criminal offence, the employer must still follow a fair disciplinary procedure. Even if the footage reveals a clear case of criminality and gross misconduct, for example, theft from the employer, the employer must provide the employee with a chance to defend their position and put forward any mitigation. The employer must also ensure that the employee is provided with a copy of the footage in advance so that they are fully appraised of the case against them.

    Using CCTV in a disciplinary FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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