USE OF CCTV EQUIPMENT IN DISCIPLINARY CASES
THE LEGAL POSITION
Under reg 3 of the management of Health and Safety at Work Regulations 1999, every employer must make a suitable and sufficient assessment of the risks to the health and safety of its employees to which they are exposed while at work.
This requires a systematic examination of the workplace, examining the hazards present and the likelihood of them arising; the extent of this assessment will vary with the complexity of the operation.
The risk assessment is intended to identify the measures to be taken to comply with the employer's statutory duties (see reg 3). Because these duties include the very general ones to ensure the health, safety and welfare of employees and to minimise health and safety risks to others, the risk assessment should cover all risks other than the utterly trivial, taking account of any relevant publications or guidance. Any assessment should be kept under regular review in the light of changing knowledge or practice: see reg 3(3).
In relation to the use of CCTV at work the two main relevant pieces of legislation are the Data Protection Act 1998 (legislation.gov.uk) (DPA) and the Human Rights Act 1998 (legislation.gov.uk) (HRA). The DPA 1998 does not prevent monitoring, however any adverse impact on the individual(s) being monitored must be justified by the benefit to the employer. The HRA applies primarily to workers in the public sector although private sector employees may be able to rely indirectly on the terms of the European Convention of Human Rights.
To help clarify the situation the Information Commissioner’s Office (ICO) published, in 2003, The employment practices code (ico.org.uk), which seeks to explain the legal position and also sets out recommendations in terms of good practice. Part 3 of the code deals specifically with monitoring at work and is available on the internet. It can be found at:
The employment practices code (ico.org.uk)
OVERT SURVEILLANCE
Staff and their Trade Union representatives should be informed and consulted in circumstances where overt surveillance is under consideration. In terms of the general approach to workplace monitoring the Employment Practices Code sets out five core principles that the employer should consider;
- It will usually be intrusive to monitor your workers
- Workers have legitimate expectations that they can keep their personal lives private and that they are also entitled to a degree of privacy in the work environment
- If employers wish to monitor their workers, they should be clear about the purpose and satisfied that the particular monitoring arrangement is justified by real benefits that will be delivered
- Workers should be aware of the nature, extent and reasons for any monitoring, unless (exceptionally) covert monitoring is justified
- In any event workers’ awareness will influence their expectations
In order to determine whether monitoring should be used the employer should carry out an impact assessment to decide whether such a step represents a proportionate response to the problem it is seeking to address. An impact assessment involves;
- Identifying clearly the purpose(s) behind the monitoring and the benefits it is likely to deliver
- Identifying any likely adverse impacts of the monitoring
- Considering alternatives to monitoring or different ways in which it might be carried out
- Judging whether monitoring is justified
- Taking into account the obligations that arise from monitoring
If the employer decides to go ahead with the installation of CCTV systems, they should ensure that where possible monitoring is targeted at areas of particular risk and confined to area where expectations of privacy are low. Continuous monitoring of particular individuals is only likely to be justified in rare circumstances. Workers should be informed of the extent and nature of any monitoring that is taking place and the reason for it. Adequate notices should be displayed to inform workers that monitoring is taking place.
If CCTV evidence is gathered using overt surveillance methods, workers should have access to the information, be afforded the opportunity to explain or challenge the footage and be allowed to make representations before any disciplinary or other action is taken by the employer
COVERT SURVEILLANCE
The Employment Practices Code makes clear that covert monitoring should only be used in exceptional circumstances where criminal activity or equivalent malpractice is suspected. Furthermore, it should only be deployed as part of a specific investigation and should cease once the investigation is completed. Other information collected in the course of the investigation should be disregarded and, where feasible, deleted unless it reveals information that no employer could reasonably be expected to ignore.
Covert monitoring should not be used in places such as toilets and private offices except where there is a suspicion of a serious crime and there is an intention to involve the police.
THE ROLE OF RMT REPRESENTATIVES
In circumstances where the employer is considering the use of covert surveillance, it should seek the prior agreement of RMT representatives for the surveillance to begin. RMT representatives should only agree to such monitoring to taking place where there is a reasonable suspicion of criminal activity and/or serious wrongdoing.
TRADE UNION CCTV AGREEMENTS
In a case reported in the Labour Research Department’s pamphlet: Monitoring and surveillance – a guide to privacy at work pamphlet the GMB, following the use of CCTV evidence to discipline one of their members for spending too much time in the toilet, secured agreement from the employer that CCTV would only be used to detect theft or sabotage.
The trade unions at Walsall Borough Council have drawn up with the employer an ‘employee surveillance protocol’ which provides a framework for circumstances in which CCTV, and other forms of surveillance, are in use.
- Surveillance is only allowed when it is essential to establish reliable facts following a reasonable suspicion of wrongdoing
- It must be a proportionate response – if a minor misdemeanour is suspected then going to great lengths to set up elaborate surveillance would be unreasonable
- Justifiable reasons for surveillance include crime detection or prevention, the protection of health and safety of the public and/or employees
- Fishing exercises are not allowed – surveillance should only take place for as long as justifiable under the terms it was approved
Here are some key links to the use of CCTV from the Information Commissioner’s Office:
CONCLUSION
With the introduction of CCTV becoming more widespread, it is important to understand the parameters for use of such equipment, particularly in the workplace and in disciplinary cases. However, should any member have concern that these parameters are being abused by their management this should be brought to the attention of their Branch Secretary.
In conjunction with this document, please also see RMT’s guidance on Body Worn Video Cameras.
Example of a draft agreement between a company and the RMT
CCTV Policy
This Policy has been agreed with the RMT and the company issued in xxxx. Any revisions to this Policy will require this agreement to be reviewed and amended as required through appropriate discussions.
The company will progressively equip its entire fleet with on-vehicle CCTV. Use of this equipment is governed by the Data Protection Act 2018, which will be fully complied with by all employees.
Managers and supervisors will not routinely monitor driver performance on CCTV, but will review footage to investigate incidents and accidents.
Why do we use CCTV?
It is accepted by all parties to this agreement that the installation and the use of CCTV cameras in vehicles is beneficial to both the company and its employees. It is designed to enhance the security and personal safety of employees and passengers alike. There are numerous examples of where the company has been able to successfully use CCTV images to defend the actions of its staff in light of criticism from members of the public.
On-vehicle CCTV/Audio CCTV is designed to enhance the security and personal safety of passengers and employees. It is not intended that CCTV/Audio footage will be routinely monitored, but that it will be used to investigate incidents and accidents to provide evidence.
It is now common place for vehicles to be fitted with CCTV. Increasingly the company is now purchasing vehicles with an ability to capture sound recordings of interactions between the driver and passengers. Such information has been often desired in previous investigations, particularly to clarify words exchanged in rare occurrences where disagreements between employees and passengers have arisen as well as when reporting crime against our employees.
Where audio recordings are now available, these will be used under the same principles as previous CCTV agreements both nationally and locally. This is to reiterate that CCTV will not be routinely monitored by the company but will be used to assist the investigation of any alleged misconduct by its staff or to assist staff in reporting crimes committed against them individually or the company’s assets.
Who can use and how can they use CCTV Footage?
Full training will be given to any persons who will be required to have access to CCTV systems at each depot. This training will ensure that data captured through CCTV systems is handled in an appropriate manner and the company can ensure that it fully complies with the requirements of the Data Protection Act 2018 the CCTV Code of Practice 2000 as amended in 2008, 2014 and 2021 and any other regulation as required by law.
To alleviate any doubt, misunderstanding or ambiguity on when CCTV footage can be used, the following guidelines will apply:
1. In any instance where the download of CCTV is required for an accident involving one of the company’s vehicles, passengers or staff, this will only be carried out by an authorised member of staff, in line with the CCTV guidelines and all relevant paperwork being appropriately completed and signed.
2. When an issue of alleged misconduct is highlighted to the company and a disciplinary or grievance investigation may be required and CCTV footage may be relevant to the investigation, it will be downloaded by an authorised member of staff. This downloading of footage will be carried out in line with the CCTV guidelines and all relevant paperwork being appropriately completed and signed.
3. Where available, CCTV footage can be used throughout the investigatory meetings and as required throughout any further disciplinary or grievance proceedings including at all stages of appeal that employees are entitled to throughout the relevant disciplinary or grievance procedures.
4. If during the course of viewing CCTV an offence of serious misconduct is identified then an investigating officer will be appointed which may be the member of management who viewed the CCTV or an alternative. This investigating officer would be prevented from playing any part in a disciplinary process that may follow.
5. As with the general principles relating to evidence submission established in the disciplinary process, staff will be entitled to view CCTV footage before being asked to comment on this. CCTV footage may be inspected prior to any investigatory/ disciplinary/ grievance hearing commencing by prior arrangement with the person convening the meeting or during an adjournment in such a hearing. When hearing letter is issued, it should clearly state whether CCTV/Audio CCTV evidence is going to be used or not and should offer the individual the opportunity to view the footage with a trained representative of their choice in private prior to any interview being convened.
6. CCTV footage commencing 10 minutes before the alleged incident until 10 minutes after the alleged incident will be made available for viewing in all cases. If the evidence can be found within 5 minutes of the alleged time of the alleged incident, then that is all that should be used; fishing trips outside of these parameters will not be supported and deemed as trawling.
7. Once the incident has been identified and viewed no further viewing is necessary except where it is identified that the CCTV will need to be reviewed by a further party as part of an ongoing investigation. It should also be noted that where CCTV has formed part of an internal investigation or disciplinary process, CCTV may be retained within the employee’s file.
9. Records of all CCTV removed from vehicles and all CCTV images viewed will be maintained in accordance with the Data Protection Act 2018.
Ongoing maintenance of the System
It is jointly agreed and recognised that, where fitted, CCTV cameras and audio recording equipment should be maintained in good working order. To this end the company will undertake regular checks of the system and employ appropriately skilled engineers to carry out any remedial work required.
Regular checks of the system will be carried out using a hand-held camera unit, records of all checks must be maintained. The hand-held camera should only be used, by an authorised /named person from either operations or engineering, for the purpose of checking that all cameras and recording equipment fitted to vehicles are functioning/recording correctly. This equipment should never be used for any reason other than for maintenance/repair purposes, unless in extenuating circumstances where it has been agreed by both the company and Trade Union that its use for another purpose would be in the best interests of all concerned. In those circumstances this must again be done in accordance with the CCTV policy and all relevant paperwork must be appropriately completed and signed.
Abuse of the Policy
Should any employee consider that the CCTV Policy has been abused or that CCTV images and/or sound recordings are being misused by a Company official then details of this should be brought to the Operations Director’s attention immediately so as any such allegations can be investigated.
Any unauthorised interference with any part of the CCTV equipment by an employee will be treated as gross misconduct.
Surveillance Camera Code of Practice (publishing.service.gov.uk)
Unity House
Tel: 020 7387 4771
Email: