Surveillance at work can take a number of forms. Most workplaces have internet, e-mail and voice-mail facilities; many now have CCTV installed and some even have GPS and tracking systems fitted to their vehicles.
With recent criticism from the Employment Appeals Tribunal and Billy Hawkes, our Data Protection Commissioner, in his 2010 annual report, employers now more than ever need to be aware of their obligations in the work place.
The following tips will assist employers in taking preventative steps to minimise their legal exposure in situations where they have different forms of surveillance in place. They will also assist employees who may have concerns about the manner in which their privacy rights are being infringed and what rights and obligations they have in terms of exercising those rights.
1. Employers should set out in the employee’s contract of employment and staff handbook that surveillance and monitoring takes place in their place of employment.
Legal Basis: Employers should be aware of what kind of activity is protected by privacy laws. Data Protection legislation applies to the collection, use or storage of information about employees, the monitoring of their e-mail and internet access or their surveillance by CCTV camera involves the processing of personal data.
2. Employers should implement a Data Protection Policy or Acceptable Usage Policy which should reflect a proportionate balance between an employee’s right to privacy and an employer’s right to protect their legitimate business interests.The policy should explicitly state the nature, extent and purpose of the monitoring. At a minimum, the policy should deal with the following:
- Acceptable personal use of internet and e-mails
- Time wasting and disciplinary implications
- Nature, extent and purposes of the monitoring within the workplace
- Improper or illegal use of technology to include downloading or distributing child pornography, indecent and offensive material and viruses.
Legal Basis: Monitoring of employees must be a proportionate response by an employer to the risk. Any monitoring or employees must be transparent, fair and proportionate.
3. If you want to use CCTV footage in the workplace, you must inform your staff of the existence of the surveillance and the purpose for which the data is to be processed.
You should display signs or warnings in the workplace confirming that such systems are in use.
Legal Basis: Employers cannot legally monitor e-mail and internet use without their employees knowledge and consent.
4. Where you intend to use cameras to identify disciplinary (or other) issues relating to staff, employees must be informed of this before the cameras are used for these purposes.
In the event that you intend to use footage in a disciplinary hearing, you should provide the employee with the footage in advance of the hearing, as you would with any other evidence being put to the employee (James O’Connor v Gallen Limited UD1514/2009). The employee must be given an opportunity to review the footage.
Legal Basis: Employees must be informed of the circumstances whereby their personal information may be retained and used.
5. All managers or persons conducting a disciplinary hearing or an appeal should be wary of the fact that notes or minutes can be accessed by an individual. There is a requirement that records need to be accurate, adequate and relevant.
Legal Basis: Employers should be mindful that an employee’s right to access personal data generally extends to appraisal and performance reports, disciplinary and appeal records and references.
6. Covert surveillance is normally only permitted on a case by case basis and in exceptional circumstances where the personal data is kept for the purposes of preventing, detecting or investigating offences, or for apprehending or prosecuting offenders. This provision implies the involvement of An Garda Síochána.
Where covert surveillance has been in place for the purposes of detecting unlawful or criminal conduct being carried out by Employee A, the material cannot be used against Employee B in the event that it uncovers performance issues and otherwise (Data Protection Commissioner Case Study 6/2007 involving the Gresham Hotel).
Legal Basis: Employers can only lawfully use covert surveillance sparingly and it should be of short duration and be directed at specific individuals and in specific locations only.