Employment Law Versus Human Rights Law for CCTV Cameras

It comes as no surprise to many that the India has more CCTV cameras per person than anywhere else in the world; leading human rights lawyers to warn that their almost constant use in our everyday lives raises data protection and wider privacy concerns, since they can be used in an intrusive way.

But what are the limits? At the workplace, employers are permitted to monitor workers in so far as it is necessary and proportionate to the management's reasons. CCTV monitoring is often undertaken for security reasons and is thus widely viewed as reasonable. It follows that employees naturally inspire reassurance from their respective employers that they are using CCTV responsibly.

The Information Commissioner's Office (ICO) published its first CCTV Data Protection Code of Practice in 2000 to help CCTV operators comply with the Data Protection Act 1998 (DPA) and follow good practice.

The Code of Practice: Monitoring at Work gives guidance on how to avoid employees calling in the lawyers over breaching the provisions of the DPA. The Code provides that before such monitoring is introduced, an impact assessment must be carried out to determine what (if any) monitoring is justified by the benefits of that monitoring. Under the DPA, any CCTV monitoring must normally be open and backed by fulfilling reasons.

The assessment should consider targeting the monitoring only at the areas of particular risk, confining it to areas where people's expectations of privacy would be low, using video and audio monitoring separately - cases where the use of both to be justified becomes rare. Its operation should only be where deemed necessary rather than continuous - although continuous monitoring may be justified where security is at risk. Finally, whether comparable benefits can be obtained by less intrusive methods and what adverse impact it may have on workers.

In making the assessment it is advisable for the employer to consult trade unions/employee representatives.

If the monitoring is introduced to enforce certain rules and standards, the employer must ensure that the workers are aware of and understand them.

According to one employment lawyer, the use of CCTV to monitor the actions of employees has potential implications in respect of the Data Protection Act and the Human Rights Act 1998 (HRA). If the surveillance is excessive, the implications may vary depending on whether the employer is a public or private body or individual.

If the employer is a private organization or company, then direct reliance on HRA is not possible. Nevertheless, all contracts of employment contain an implied term that employers will not - without reasonable and proper cause - conduct themselves in a manner likely to destroy or seriously damage the relationship of trust between themselves and employees. Yet, it is doubtful that CCTV cameras in obvious places in the workplace would violate this implied term.

On the other hand, an employer in a public body has an obligation to respect workers right to private life under Article 8 of the European Convention on Human Rights (as enacted by HRA). However, this right is a qualified right which means that it may be interfered with for a legitimate purpose in accordance with law and is necessary in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The interference must be proportionate in achieving its aim. An example of disproportionate use may arguably be where cameras are put in toilets or changing rooms.

Ultimately, it should be borne in mind that despite the points outlined there is very little scope to impede employers making recordings. Placement and retention of footage must be in accordance with regulations under DPA. As this is a relatively recent development in the law, there are very few decided cases (the DPA does not apply to individuals' private or household purposes).

Assistance for employees comes from either expressing direct concerns to the employer which is the easiest way to resolve the situation or from a union if the worker is a member.

Any personal data collected must be stored securely. Also, regard should be had to the fact that anyone who is captured on CCTV will have a right of access to that footage under the DPA.