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Can I carry out covert surveillance on my workers?

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As an employer, you can carry out covert surveillance on workers, provided you follow certain guidelines.  You will also need to consider two potential issues; whether there are any conflicting principles with their rights in Data Protection and their right to privacy through the European Convention on Human Rights (ECHR).  Our Employment team explain more about these considerations here, as well as the guidelines you need to follow as an employer.

Data Protection rights and covert surveillance

If you wish to carry out or have the right to carry out covert monitoring, a data protection impact assessment should always be undertaken for any form of CCTV surveillance operation that is implemented on or after 25 May 2018. Such an assessment should address two main areas:

  • Can CCTV be used that is time-restricted or location-specific?
  • Does the workforce already know of the possibility that covert CCTV may be used in exceptional cases and that this will be in accordance with existing policies and procedures?

While there is no set process or method of presentation for a data protection impact assessment, under GDPR the minimum features of such an assessment must include:

  • a description of the way the data will be processed and the purpose of the processing;
  • an assessment of the necessity and proportionality of the data processing activity;
  • an assessment of the risks to the privacy rights of the individuals affected;
  • the measures envisaged to address the risks, and
  • demonstrate compliance with the Data Protection Act, for example, the safeguards and/or security measures that need to be put into place.

You must ensure that your covert surveillance complies with the Data Protection Act 2018 and the Employment Practices Code published by the Information Commissioner’s Office (ICO).  The ICO guidance states:

"The covert monitoring of workers can rarely be justified. Do not carry it out unless it has been authorised at the highest level in your business. You should be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice, and that telling people about the monitoring would make it difficult to prevent or detect such wrongdoing. Use covert monitoring only as part of a specific investigation, and stop when the investigation has been completed. Do not use covert monitoring in places such as toilets or private offices, unless you suspect serious crime and intend to involve the police."

The reason behind the covert surveillance

It is very rare that you would need to carry out secret monitoring, but if you wish to do so then you must have a genuine reason, such as suspecting criminal activities or malpractice. Monitoring must be obtained as quickly as possible, only as part of a specific investigation and must stop when the investigation stops.

There have been several cases brought to the Employment Tribunal that review this type of activity by employers.  In the Spanish case of Lopez Ribalda and others v Spain, secret cameras were used to discover who was stealing from a shop. From this surveillance, five employees were identified and dismissed. The European Court of Human Rights held that their right to privacy under Article 8 of the ECHR had been infringed because their employer had not struck a fair balance between the employees’ right to privacy and their interest in protecting their property. The covert surveillance had not been targeted at particular employees or been time limited; all store employees had been monitored without any time limit and during all working hours. 

However, in a similar case in Germany, Köpke v Germany, the Court found that there was an appropriate balance because only specific employees under suspicion were watched and for a shorter period of two weeks.

The cases are good examples of how to conduct covert surveillance so that any action you take due to the footage remains lawful.  This can be a tricky area of employment law and so it is vital that if you are considering monitoring your employees that you seek legal advice to ensure that you do not open yourself up to potential claims against you. To see how we can help you with any Employment Law queries click here, or alternatively email our Employment team at employment@warnergoodman.co.uk. You can also call the team on 023 8071 7717.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.