Ireland: Monitoring Employees in the Workplace - The Christmas Edition

In a recent decision of the Employment Appeals Tribunal ("EAT")1, an employee was dismissed after getting into an altercation with another member of staff at an office Christmas party.  On review of the CCTV footage by the employer, the employee was dismissed for gross misconduct.  The employee ultimately succeeded in a claim for unfair dismissal on the basis, however, that the disciplinary procedure followed by the employer was flawed. Notwithstanding that the employee was found to have contributed to his dismissal by his own behaviour, the employee was awarded €25,000 by the EAT.

Interestingly, although the EAT carefully considered CCTV footage supplied by the employer, it found that the footage "was not completely conclusive and did not provide the Tribunal with any clear or accurate evidence of what occurred on the night in question".  As such, the case serves to remind employers of the need to exercise caution when it comes to the use of CCTV footage to justify disciplinary action, be it in the context of an office Christmas party that has got out of hand or otherwise.

With this in mind, this article considers the key principles that employers must bear in mind when it comes to the use of CCTV in the workplace. 

1.  General Principles

Employees do not lose their right to personal privacy when they walk through the doors of the workplace. While employers have a legitimate interest in ensuring their employees are not engaging in misconduct, this must be balanced against the employees' right to privacy.  CCTV monitoring will only be permissible where it complies with the requirements of the Data Protection Acts 1988 and 2003 (the "DP Acts"), and in particular, the principles of transparency and proportionality.

i. Transparency

The DP Acts require that personal data is obtained fairly for specified, explicit and legitimate purposes.  Employers should expressly alert their employees to any monitoring that is taking place, and clearly communicate the purpose of such monitoring.  The fact that an employee may be aware of the existence of CCTV cameras will not justify an employer using CCTV footage in a disciplinary process if the employee was never told the footage could be used for that purpose.  An employee is entitled to assume the CCTV will be used for security purposes only. Indeed, in one case study referred to by the Data Protection Commissioner ("DPC"), a disciplinary process regarding poor attendance had to be dropped on instruction by the DPC for this reason.

Covert monitoring of employees by way of hidden cameras in the workplace is rarely acceptable unless it is necessary to investigate potential criminal activity.  This usually implies an involvement of the Gardaí.  An employer who engages in covert surveillance of its employees for any other reason runs the risk not only of a DPC investigation, but that any disciplinary proceedings initiated on foot of the CCTV footage would be deemed unfair by the EAT.

The EAT recently awarded a former Dunnes Stores employee over €9,300 in compensation when it concluded that she was unfairly dismissed after she was caught on CCTV consuming food from a deli at the store without paying for it.  The employee had not been made aware of the presence of security cameras which were installed due to breaches of the company policy in the deli area.

ii. Proportionality

The DP Acts further require personal data to be adequate, relevant and not excessive for the purpose for which it is collected. This requires an employer to show that the installation of CCTV camera is justified.  Accordingly, even where an employee has notified its employees of both the existence of CCTV cameras and reasons for their installation, monitoring will still fall foul of the DP Acts if the intended use is not just justifiable and proportionate.

While the use of CCTV cameras for security purposes is generally acceptable, the DPC has indicated that using cameras for staff monitoring "is highly invasive and will need to be justified by reference to special circumstances".  Thus, an employer who wishes to use CCTV to monitor attendance or staff conduct, for example, would need to show exceptional circumstances necessitating such surveillance.

2.  Top Tips for Employers using CCTV in the Workplace

  • Ensure any monitoring in the workplace is reasonable and justifiable.
  • Notify your employees of the existence and purpose of CCTV cameras, and their locations.
  • Display clear signs in prominent locations reminding employees that CCTV surveillance is in operation.
  • Put in place a clear policy dealing with the use of CCTV.
  • Remember that recognisable CCTV images constitute personal data which may need to be disclosed in response to a data access request.
  • Do not retain footage any longer than is reasonable necessary.
  • Be conscious of your obligations and responsibilities under data protection legislation - get informed!

Footnote

1   John Graham v Newlands Cross Hotel t/a Bewleys Hotel Dublin Airport

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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