Employers may have legitimate reasons for wanting to place
employees under video surveillance, such as vulnerability to theft
or sabotage, or even concern about safety.
Here we aim to assist you in finding a balance between
protecting your legitimate interests and not invading against your
employees' ever-increasing rights to privacy.
Q: When can an employer use video surveillance to
A: Courts and arbitrators have focused on
determining how the specific video surveillance was implemented and
why, with the help of four considerations:
Is the surveillance necessary for legitimate or
reasonable businessinterests? Such
interests include loss-prevention and safety or security
Is the collected information limited to that
necessary to the purpose? The scope of the
surveillance will be deemed reasonable only if it is restricted to
what is necessary to the expressed purpose.
To what extent is the employee's privacy
affected? Surveillance for productivity issues, or where employees
have a reasonable expectation of privacy, is usually held to be
unreasonable unless there is a significant business interest at
Were effective alternatives considered? Video
surveillance is a significant step, or even a last resort. If
effective alternatives that are less invasive of privacy do exist,
then it may be seen as unreasonable to use video surveillance. That
said, an employer would not be required to use inefficient or very
costly alternatives, provided the measure is reasonable and
Q: What about surreptitious surveillance by cameras
whose locations and purposes are not known to the
A: Varying standards exist regarding
surreptitious video surveillance, and such surveillance should be
reserved for certain situations, such as: where substantial
evidence of wrongdoing already exists or where less invasive
measures have already been exhausted. The decision for such
surveillance should be made at a senior management level.
Tips for Employers
Before implementing video surveillance, consider viable
alternatives and maintain records that can be used as evidence if
If the video surveillance is to be open and with a business or
security purpose: identify this purpose; make it known to
employees; restrict the surveillance to that specific use; and be
prepared to demonstrate its need.
If the video surveillance is considered necessary, ensure that
the surveillance is reasonable and that its intrusive effect on
privacy is limited. Weigh the employees' loss of privacy
against the employer's benefit, to ensure the proportionality
of the measure.
Review any relevant collective agreement for any stipulated
Since some arbitrators have required that an employer confront
an employee with its suspicions, prior to video surveillance,
consider whether confronting the employee is possible, or whether
it would undermine your subsequent surveillance.
Consider the various kinds of video surveillance equipment and
choose the one most suitable, keeping in mind that admissibility in
court depends on a videotape being a true and accurate
Consider contracting with a reputable investigation or security
services provider to set up and maintain the surveillance
Whether you hire a security services provider or do your own
taping, know: who created the tape; who, if anyone, edited the
tape; and that the tape has been securely maintained and
Ensure that the video surveillance documents the acts in
question, portraying them clearly, without bias or manipulation. A
videotape whose prejudicial effect exceeds its probative value can
be excluded from evidence.
The videotapes should clearly mark the correct time
and date when they were made and should not be edited for content
or regarding time, lighting or continuity.
Ensure that a witness will be available to testify that he or
she knows when, where and under what circumstances the videotape
was made, and that the tape is a fair and accurate reproduction.
Ensure that only one person does the actual videotaping and that
only one person (preferably the same person) maintains secure
custody of the tapes.
The individual conducting covert video surveillance of an
employee should be prepared to respond if the employee discovers
the surveillance, responding to questions briefly and honestly,
i.e., that he or she is videotaping the employee's activities;
that he or she was asked to do so; and, if the employee demands to
know by whom, by responding that he or she is not at liberty to
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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