Credit Management November 2018

HR MATTERS
Candid camera
The legalities of filming your employees.
AUTHOR – Gareth Edwards
IT’S not hard to find examples of
those in financial roles who’ve
abused trust to steal. In one, last
December, the manager of the
Louth branch of Halifax Bank was
sentenced for stealing £234,000 to
pay off a blackmailer.
Of course, there will be situations where
employers consider covert surveillance
appropriate. In those circumstances,
however, employers will not have free rein.
There are legal issues that arise from
using recordings in the workplace.
Employers looking to monitor the conduct
of their employees – particularly those
using covert recording – should consider
their actions carefully, particularly in
light of the requirements of the General
Data Protection Regulation (GDPR), which
became law in May.
A recent case considered the lawfulness
of surveillance within the workplace. In the
case of López Ribalda and others v Spain
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.
COVERT CAPTURE
The footage collected showed five
employees stealing items from the
supermarket. The employees were
confronted and admitted to theft,
after which they were dismissed. The
employees pursued unfair dismissal claims
through the Spanish courts, which were
unsuccessful. The employees 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.
The ECtHR agreed that the use of covert
cameras constituted a violation of the
employees' right to privacy. The ECtHR
looked at whether the Spanish courts
had properly balanced the employees’
rights to respect for their private life and
the employer's interest in protecting its
property rights, and the public interest
in administration of justice. The ECtHR
determined that, whilst 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.
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. 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.
In the UK, 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. It should therefore only be used
in exceptional circumstances.’ Examples
of an 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.
In order to assess whether prejudice
is likely, employers must conduct a
detailed investigation and obtain senior
management approval. In addition, under
the 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 (i.e. those whose personal data is
being collected). Covert monitoring will
fall within the scope of this obligation.
Therefore, employers are placed under an
additional obligation when considering
covert surveillance.
MONITORING POLICY
Finally, employers who use video
surveillance should ensure that they have
a policy in place setting out what CCTV
monitoring takes place; the reasons why it
has been deployed; and how the recordings
are used.
It’s worth noting that the Information
Commissioner’s Office (ICO) has a page on
its website concerning monitoring at work.
It says that CCTV monitoring can be used
in the workplace for a number of reasons,
however, if CCTV is installed the employer
should make sure employees are aware of
it. This is usually done by displaying signs
to say where the locations of the cameras
are. 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
such as website address, telephone number
or email address.
Importantly, under data protection
legislation, if an employer tells employees
the reason why 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.
Gareth Edwards is a partner in the employment
team at VWV.gedwards@vwv.co.uk.
The Recognised Standard / www.cicm.com / November 2018 / PAGE 50