Is Big Brother Watching your staff or clients?-use of CCTV in the workplace

There are two main issues that arise in relation to the use of CCTV monitoring namely,

1. Data Protection and

2. how the information that is collected is used for disciplinary purposes

Data Protection 

 The Information Commissioner in the UK has issued a Code of Conduct that develops the Act in the context of employment practices. Whilst clearly the Code is not legally binding in Ireland it is likely to be used in this jurisdiction as a basis and it would be best practice to ensure that you comply as best it can with the Code.  Part of this Code deals with the issues that arise when an employer monitor its employees through opening or monitoring employees’ emails to recording the activities of employees by means of CCTV cameras.  Whilst most Internet and Email usage policies will comply with the Code businesses that use CCTV should include a similar policy relation to the use of CCTV.

What about monitoring? 

Monitoring in general should comply with the Code and must comply with the Data Protection Acts and the following matters should be considered: 

• Companies that retain data must register with the Data Protection Commissioner and the existence of CCTV should be included in said registration; 
• The organisation must decide the length of time they retain the information collected which should be reasonable; 
• The personnel who have access to the information must be limited and the information/data must be properly and securely stored, particularly when there is sensitive information contained in the data collected; 
• The equipment must be in good working condition.

Furthermore, where CCTV is used the following specific guidance is given:  

• Signs must be erected advising of the presence of CCTV;

 

• Where possible, any CCTV should be targeted at areas of particular risk and confined to areas where expectations of privacy are low;
•  
• The relevant company should inform employees that CCTV monitoring is being carried out and where and why it is being carried out (unless covert monitoring is justified which is dealt with below) 
• The Company must ensure that those employees that are inadvertently caught by the monitoring are made aware of its operation and purpose through adequate notices and other means. 

What about Covert Monitoring

Whilst covert monitoring itself is not subject to the DPA once it results in records/tapes/data being kept about an employee the DPA will apply.  Covert monitoring is only permitted under certain circumstances, for example if there are grounds for suspecting criminal activity or malpractice and informing an employee would prejudice its prevention or detection.  If any employer is considering covert monitoring the following guidance should be followed: 

• Any cover monitoring should be authorised by senior management; 
• Covert monitoring should only be used as part of a specific investigation and should cease once the investigation is complete; 
• Covert monitoring should not be used in areas where employees would genuinely and reasonably expect to be private; 
• Information that is obtained through covert monitoring should only be used if it relates to the prevention or detection of criminal activity or equivalent malpractice.  Any other information collected as a result of this monitoring should be disregarded. 

These guidelines should also be followed under the next heading –use of CCTV evidence in Human Resources.

Can I use CCTV evidence?

Whilst CCTV is primarily installed and used as a means to provide security for businesses and premises some employers use CCTV to monitor employee’s activities in the workplace. Consequently, whilst employers may have installed video surveillance as a security measure, it has now access to video footage that could be used as a means of gathering evidence to justify disciplining employees for misconduct. 

However, it goes without saying that, as with all disciplinary matters, caution must be exercised in using this information to justify disciplining and/or terminating an employee for misconduct or breach of procedures and policies e.g. Health and Safety.  A fair procedure must always be followed and a balance must be struck between the Company’s right to protect its business interests and the employee’s rights. 

It appears from cases appearing recently before the Employment Appeals Tribunal (EAT) that while the actual use of CCTV is not considered inappropriate; it is essential that fair procedures be adhered to in relation to the presentation of CCTV evidence to the employee and the manner in which the dismissal is carried out.  The EAT appears to have no difficulty with accepting such CCTV evidence in making its determinations in relation to unfair dismissals. 

Best practice in relation to the use of CCTV would be to inform all employees of any and all CCTV surveillance in the workplace. Often the installation of CCTV measure is taken as a security measure and employees are not informed that their conduct may be monitored.  Employers should have clear policies in place in relation to the monitoring of employees and ideally a clause should be inserted in the contract of employment or staff handbook, whereby the employee gives his or her clear consent to all types of monitoring (e-mail, Internet, business calls and CCTV) in the workplace.

Dealing with minor misconduct!

 

The first step of a disciplinary procedure. 

A lot of cases that end up in front of a Rights Commissioner or the Unfair Appeals Tribunal have a number of similarities.  One of the common themes is where an employee’s work standards or attendance etc have slipped and, instead of dealing with it at an early stage, an employer waits until the situation has got out of hand and ends up dismissing or trying to discipline the employee that results in an allegation of constructive dismissal.  However, where an employer deals with issues as and when they arise there is a strong likelihood that the behaviour will improve and if not, that the any subsequent dismissal will be deemed to be fair.

What is the purpose of the disciplinary procedure? 

It is worth remembering that the objective of a disciplinary procedure is to allow the employee to improve their performance and conduct and is not a form of punishment. You should avoid invoking a disciplinary process with the sole purpose of dismissing an employee.  Unfortunately a lot of employers wait until a situation has got so bad that they see dismissal as the only outcome but if a problem is dealt with early and correctly it can often be resolved.  Furthermore an employer should always exhaust all efforts to allow the situation improve before resorting to a dismissal and all of the inherent risks associated with that decision.

“Prevention is better than cure” 

By taking the appropriate action early you are increasing the likelihood of resolving the problem and avoiding unnecessary confrontation.  This is even more relevant where you don’t follow you written policy in place as if the situation escalates or where there is a lack of “procedural fairness” it is almost a certainty that a tribunal or court would find against you as an employer for unfair dismissal. 

Where you have an issue with an employee and it is the first problem the first step should be an informal discussion.  Basically, it would just be a meeting between you and the employee in question (or with her manager if there is a manager) where you could just point out that there has been one or two situations that have arisen where the employees work and punctuality has not been up to the level you require and re-iterate what you expect of her in their role and how they should improve.  You might find out that there is something outside of the workplace that is causing the problems that might explain the change of behaviour.

This meeting should be held in private and you should make sure you have sufficient time to deal with the issues.  Reduce any chance of interruptions by either meeting out of the office or at a time when you are not too busy. 

Early intervention should pay off 

You should point out that this is merely a preliminary step but if the situation continues to deteriorate you will have no option but to take a more formal approach next time.  Of course the employee should be given an opportunity to put forward her own views or an explanation.  Ultimately you should agree the steps required to improve the situation including a timeframe for the situation to be monitored that should be reasonable and allow for an improvement to take place. 

Once you have agreed the steps required you should confirm your discussion in writing and ask the employee to agree so there is no ambiguity and agree to meet in say 2 weeks time to see if there have been improvements.  Hopefully, as in the majority of cases where early intervention is taken the problem usually resolves itself.

Remember: 

• Confront the situation as early as practicable-don’t wait until it gets so bad that you see no alternative but to fire the employee.
• Keep in mind the disciplinary process is intended to improve the behaviour not act as a punishment.
• Make sure the employee is given an opportunity to give an explanation-ask her if she feels she is happy with her performance.
• Try and agree the steps required and a suitable time frame for the employee’s behaviour to improve.
• Make sure you follow up on the agreed steps and meet to review the situation again within the agreed time frame.