Employers may take steps to monitor employees using CCTV, bag searches, drug testing or checks on websites or emails. The extent of the monitoring should be set out clearly in the employee handbook/contract of employment and should not be a surprise to the employee; the employer should also ensure that the monitoring is compliant with data protection law and unintrusive for the colleague. Inappropriate monitoring may lead to an unhappy employee, resigning and claiming constructive dismissal. A poorly thought-out bag search or drug test may be construed as discriminatory, assault or false imprisonment.
Although the use of CCTV in the workplace is publicly accepted as a monitoring tool, employers should look to the data protection code of practice for cameras set out by the ICO for further guidance. Using CCTV is privacy intrusive, involves the processing of personal data and places law-abiding people under surveillance whilst recording their movements. It is therefore crucial to consider what problem a surveillance system is attempting to solve, whether other solutions are available and if using such a system is a proportionate response to the issue at hand. Companies regularly carrying out an objective privacy impact assessment are proactively reviewing fairness as set out in the first data protection principle, as well as evaluating proportionality and necessity. This approach can be used in the consideration of installing new equipment or to continuously review an existing system and whether alternatives become more appropriate to address the pressing need.
In Lopez Ribalda v Spain (2019) a Spanish supermarket installed covert CCTV to address stock loss in the business that amounted to thousands of euros over a five-month period. At employment tribunal the surveillance was found to be justified, appropriate, necessary and proportionate. After more appeals failed, the case progressed to the ECHR and the chamber held that there was indeed a violation of Article 8 (right to respect for private and family life), prompting a further appeal by the Spanish government to the ECHR Grand Chamber. The key factors tested were notification of the possibility of CCTV; the extent of surveillance and the degree of intrusion; legitimate reasons to justify the use and whether less intrusive methods could have been implemented.
It was held on applying the factors that the size of the theft, the short time monitoring and the location of the cameras in a public area (with a low expectation of privacy) meant that the employer was justified in using covert surveillance and CCTV. The judgment interestingly side-stepped the issue of the employees never being informed of the CCTV by saying that knowledge of the operation would have defeated it’s overall purpose. It could be debated that a transparent process of the intention to tighten security with consultation of employees about the reasons for installing surveillance equipment, might have gone a long way to achieving the same desired result.
The monitoring of colleagues is a sensitive employment issue and it is important that any policies and processes implemented are proportionate to the problem the employer is trying to solve and are unobtrusive for the employee.