With technology now a normal part of life, more employers are using technology to monitor and manage employees – from tracking keystrokes to installing CCTV camera. But recently, several cases of employer surveillance have made the headlines.
So before you install cameras in the workplace, here’s a few things to consider.
Understand data and privacy
When you’re using CCTV, you need to be aware of people’s information rights and your responsibilities in relation to those rights.
If your CCTV could capture images of people, you must be registered with the Information Commissioners Office, the ICO. Staff members can complain to the ICO if they feel you’re using CCTV unfairly.
The Information Commissioner’s Office offers useful guidance to help employers understand their obligations. The guiding principle is that use of CCTV must be fair and proportionate to comply with data protection law. The more invasive the use – for example, using CCTV in private areas such as toilets or changing rooms, or recording audio – the harder it will be to justify.
Be clear about the purpose, both with those being monitored…
Excessive or unjustified monitoring may damage trust. The Information Commissioner’s Office (ICO) guidance says that if you want to use CCTV to monitor your staff, you’ll need to make this clear to them and have a strong reason for doing so, such as health and safety reasons. The guidance also suggests that it is not usually fair to use CCTV for monitoring or discipline without warning your staff.
A recent dispute at Gail’s hit the headlines for this reason. During an ongoing dispute about working conditions, employees were allegedly told that management would be randomly reviewing CCTV footage to monitor employee activity – including phone use, eating, and break times. Workers suspected this was “an attempt to find reasons to discipline workers.” Gail’s denied any “suggestion of intimidation or ‘trade union detriment’,” but reiterated that the company “only uses CCTV from a safety and standards perspective.” The chain seems to be accepting that it will use CCTV footage to monitor employee performance, only denying that it is actively looking for reasons to discipline staff. Greater clarity may have helped to reassure employees that the chain did not have ulterior motives.
It is a good idea to use your handbook and policies to outline when you use CCTV and why. The ICO also suggests setting out how you will minimise the impact on employees’ privacy, and how long you will keep the footage for. But you must follow these policies – saying one thing but doing another is certain to damage to trust.
All employment contracts include an implied obligation of trust and confidence between the employer and employee. A serious breakdown of trust and confidence can breach this term and end the contract, potentially leading to claims of constructive dismissal.
…and those monitoring
You must also be clear with those who are monitoring CCTV about their purpose and boundaries. Without this clarity, it will be hard to keep control over the use of CCTV.
The BBC and security firm Mitie found this out recently, after dismissing a security guard for gross misconduct. The guard had watched 12 hours of footage to determine who made a mess in the kitchen, which was described as “superfluous use” of CCTV and a “significant breach of trust.”
But the dismissal was found to be unfair, as the employer did not seem to have an internal policy setting out duties or restrictions. The employer did not have any standard procedures for using CCTV and had not provided training. The judge pointed out that employees must be made aware when certain behaviour is considered gross misconduct worthy of dismissal.
Without training and clear controls to ensure proper use of data, you could find yourself breaching your data protection duties.
Consider who is monitored and why
Research from the Institute for Public Policy Research (IPPR) found that roles with low autonomy, low skill levels, and a lack of union representation are more likely to be monitored. These same roles are also more likely to be held by Black workers, those aged between 16 and 29, and those over 60.
The research does not offer a conclusion as to whether this increased monitoring is due to features inherent in the role, or due to prejudice about the groups who often hold these roles. However, People Management magazine points out that increased monitoring of Black people starts as early as pre-school.
One good reason for surveillance is data which shows a specific need. For example, Aer Lingus fitted covert cameras for a week to investigate a significant loss of stock. The footage showed staff stealing £1,120 worth of goods, providing evidence for criminal charges and fair dismissals. The employer used covert cameras only for a short period of time, and as a proportionate response to the loss in stock.
If only certain groups are subject to surveillance, you should be sure you can justify your focus on this group. Be sure the decision is proportionate and not based on assumptions or subconscious prejudices. If a group with a particular characteristic (such as a certain race, age group, sex or religion) is over-represented in the group being monitored, you could be risking questions around discrimination.
Don’t neglect proper procedure
Even when using evidence from surveillance, employers must be careful to follow fair disciplinary procedures.
BMW began surveillance of an employee because their physiotherapist was unable to explain the employee’s level of pain or why he remained unfit for work – despite not having discussed these concerns with the employee. Footage showed the employee walking and bending down with “no indication” of pain. BMW dismissed him for misconduct on the grounds of dishonesty, excessive sick leave and fraudulent sick pay.
However, the employee had never claimed he could not walk, simply that doing so caused him pain. The tribunal felt the video was not suitable for assessing pain as it did not show the employee’s face. The tribunal also found no basis the grounds for dismissal, as the employee had been signed off by his GP and was not receiving sick pay.
The Judge felt it could be inferred that BMW managers “had a level of distrust or hostility” and were “quick to conclude that a person with a condition was not being honest about their symptoms”. The tribunal ruled his dismissal was both unfair and discriminatory.
Be careful of viewing any footage with pre-formed ideas or using footage selectively to back up your views. Be sure to offer the employee chance to give their side, and genuinely consider their explanation before making judgments.
What does this mean for employers?
As recent cases have shown, mistakes in this area can easily damage your reputation, along with staff morale. Before you implement any sort of surveillance, it is sensible to think about why. If you do decide it is the path for you, take legal advice to ensure you are within the law.
Share this post:
