Surveillance society ... Banksy graffiti in London. Photograph: Cate Gillon/Getty
If there's a CCTV camera filming your every move while at work, let alone when walking around in public, then the surveillance society has surely arrived. And if you think it's annoying having to submit to personal searches at airports, imagine if you were at risk of being searched on arrival or departure from work every day. Worktimesurfer asks the Liberty Clinic what our rights are in respect to CCTV monitoring at work:
My workplace has a CCTV camera that covers the entrance to our area of the floor from the inside of our area. Within its view is the workstation of several of my colleagues, whose everyday activity can therefore be monitored, as well as anybody who happens to be passing by. What are my rights in respect of this camera and the images it captures? Can I insist that the camera is removed?
And smallgirl wonders what might happen if she refuses to allow her employer to search her pockets and bags:
My workplace regularly performs random security searches on members of staff, for which we are required to empty out our pockets, and, if on our way in or out of work, our bags too. The reason given is a belief that some colleagues will try to steal, and security searches are a way of combating this. I have yet to be subjected to such a search and am interested to know what my rights are concerning a refusal of such an action, particularly as a search can be instigated without due cause, or accusation.
Questioning the cameras
The first and most obvious point to make is that we don't give up all of our privacy rights when we enter the office or other workplace. But nor would anyone expect to enjoy the same level of privacy at work as they do at home. A certain level of monitoring – such as to check the quality of work – is an inevitable part of the employment relationship. And indeed some monitoring is carried out for the benefit of employees, for example to ensure the security of the building from intruders, or to check that workers are not being subjected to health and safety risks.
The question is what legal limits there are on employers to monitor their employees, when advances in technology make it ever cheaper and easier to do so.
Some types of CCTV will be subject to the Data Protection Act. Basic CCTV systems, such as those used in shops for security purposes, are unlikely to be covered, but if the CCTV is being used specifically to monitor employees then the employer will have to ensure that they are using it in a way which complies with the act. This means that the data captured must be processed "lawfully and fairly", which involves giving employees adequate information about who will be processing the data, how it will be stored, and what its purposes are. The data must not be used for any purpose other than that specified by the employer, and it must not be processed in a manner incompatible with that purpose. So if an employer claims that CCTV is necessary to protect their property, it must not use it in a way which undermines that purpose, such as by not securing the data properly or allowing others access to it. The data captured must be relevant, not excessive to the purposes for which they are processed, and must not be kept for longer than is necessary. There must also be appropriate safeguards against unauthorised processing.
A CCTV system that amounts to a disproportionate infringement of employees' privacy, so that it contravenes Article 8 of the European Convention on Human Rights, would also be contrary to the DPA. This will be very dependent on the circumstances – a camera in the loos would clearly violate privacy rights, whereas a camera in a public area such as a shop may not engage privacy rights at all. For situations between these two extremes, which may well include the situation that Worktimesurfer describes, it will depend whether the interference with employees' privacy is a proportionate means of achieving a legitimate aim. So Worktimesurfer would certainly be justified in asking why the CCTV is in place, and whether it is really necessary to include employees' workstations within its view. If not, then it might be possible to persuade the employer at least to adjust the angle of camera.
As for the images stored, any images of individual employees that are stored either in computerised form, or as part of a "structured file", should be disclosed if the employee makes a subject access request under the DPA. There is more information about how to do this on the YourRights website.
It's also worth noting that the information commissioner has published an Employment Practices Code relating to the use of employees' personal data. It's not law, but it's something that employers should be aware of. It makes the following recommendations in respect of CCTV:
• If video or audio monitoring is (or is likely) to be used, consider – preferably using an impact assessment – whether the benefits justify the adverse impact.
• Give workers a clear notification that video or audio monitoring is being carried out, and where and why it is being carried out.
• Ensure that people other than workers, such as visitors or customers, who may inadvertently be caught by monitoring, are made aware of its operation and why it is being carried out.
Stopping the search
There is far less regulation of personal searches of employees at work, although it seems that a lot of employers do make their workers submit to random searches. Since this is not the kind of thing that is an inevitable aspect of the employment relationship, it would require the employee's consent – either at the time of the search or by agreeing to occasional searches as part of the contract of employment – otherwise an employer who searches an employee may be committing an assault.
The difficult question is whether an employer would be justified in taking disciplinary action against an employee who refuses to consent to such a search. I don't think there have been any cases on this point, at least not in the higher courts where the decision would be binding precedent for future cases. The question would be whether the employer's decision to dismiss for refusing to consent was "within a range of reasonable responses". Although the Human Rights Act cannot be relied upon directly against a private employer, tribunals are public authorities within the meaning of the act, so Article 8 of the ECHR could be relied upon in any tribunal case for unfair dismissal.
Unfortunately, however, the courts have held that a stop and search under section 44 of the Terrorism Act 2000 – which would be at least as intrusive as the kind of search that smallgirl describes – does not engage Article 8. We disagree and are taking the issue to the human rights court in Strasbourg, but in the meantime arguments based on the HRA may not help much. Ultimately, it would come down to whether the nature of the searches and their frequency are reasonable bearing in mind the extent of the problem (eg theft by employees) that the employer is seeking to address.
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