Business brain: CCTV at work requires its own special vigilance
CCTV surveillance is becoming more prevalent in every aspect of our lives.
In particular, employers are increasingly using CCTV in the workplace for security purposes and to monitor employees' performance.
However, what is not always considered by employers is that recognisable images of people captured by CCTV constitute personal data under the Data Protection Acts 1988 and 2003 (the DPAs).
The extent to which use of CCTV by employers is lawful will depend on striking a fair balance between an employee's right to privacy and an employer's legitimate business interests.
It is vital for employers to have a clear written policy on the surveillance and monitoring of employees. In doing so, employers can avoid the risks associated with prosecution, which can include fines up to €3,000 on summary conviction, or up to €100,000 on conviction on indictment.
An employer should notify employees, and any clients whose image will be captured on camera, of the use of CCTV cameras and the purpose for which they are used. Surveillance should only be carried out to give effect to the stated purpose. Any ancillary use will most likely be unlawful.
Where the purpose of the CCTV is obvious (eg security), the notification requirement can be achieved by ensuring that there is clear signage on the premises stating that CCTV is in operation.
Using CCTV to constantly monitor employees' performance is likely to be regarded as highly intrusive except in special circumstances.
If employers intend to use CCTV for monitoring staff performance or conduct, then employees should be informed before their data is recorded.
The use of covert CCTV without an employee's knowledge is generally unlawful.
Covert surveillance should only be undertaken in exceptional circumstances, for the purposes of preventing or detecting crime, with the actual or intended involvement of the police.
CCTV footage is used as evidence in cases before all levels of our court system, particularly before the Employment Appeals Tribunal (EAT).
While CCTV footage obtained in breach of the DPAs cannot be lawfully used against an employee for internal disciplinary or EAT proceedings, it is often still relied upon by employers.
The reason that such footage is admissible before the EAT is due to the fact that as a statutory body it was established to deal with and adjudicate on employment disputes, and does not have any jurisdiction to consider data protection issues. However, employers who rely on unlawfully obtained footage, for disciplinary purposes, put themselves at risk of being prosecuted by the data protection commissioner.
An employee whose image has been recorded has a right of access to a copy of the CCTV footage, unless one of the exemptions under the DPAs applies, or the image is of such poor quality that the employee is not identifiable.
If an employee wishes to obtain such footage, they should provide the date, time and location of the recording to their employer.
When a security company operates a CCTV system on behalf of an organisation, their relationship must be governed by a legally binding agreement.
The agreement should provide that the security company will only act upon the instructions of the organisation and will implement appropriate security measures to protect against unauthorised access, alteration or disclosure of the personal data.
An organisation should further carry out due diligence to ensure the security company is complying with these obligations.
Employers much also be aware that they should not keep data for longer than is necessary for the purposes for which they were obtained. Therefore, an employer should be able to justify any retention period for CCTV footage. Footage must also be stored in a secure environment, ideally with access restricted to authorised personnel, and an access log kept.
Davinia Brennan is an associate in the litigation and dispute resolution department at A&L Goodbody. She specialises in data protection, freedom of information and access to information on the environment.