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ARTICLE ORIGINALLY PUBLISHED 2020

MONITORING EMPLOYEES AT WORK

CCTV can be an invaluable tool for salon owners. The footage might capture incidents involving clients and staff, or help resolve complaints, it might help identify thefts, it can enhance security and prevent incidents occurring. The situation becomes much more complicated if the employer wishes to secretly monitor employees on CCTV.

It is normally a legal requirement for the employee to know they are being monitored in advance and the reason for it.

In this feature I will focus on CCTV monitoring; however, monitoring can also include bag searches, monitoring emails/internet activity etc. To begin with you should ensure you have a clause in your contracts allowing such monitoring and a right to search employees.

IS THERE A THIEF AT WORK?

Sadly thefts can occur in any business; it is disturbing when the culprit is an employee. When thefts occur the employer has a number of options.

Sometimes just an announcement to staff that products/money or something else has gone missing is sufficient for the thefts to stop. The employer might give the message that if there is another theft then the police will be called .Another route is to interview all the staff to determine what, if anything, they know or suspect, this can be very informative. This might work although it may not enable the employer to find out who the thief was.

In some circumstances the salon owner might decide that products or notes be “marked” and as soon as something goes missing there is a random bag search. If this works, and the thief is identified, then great news. You follow your disciplinary procedure, suspend and dismiss the employee.

But what if you don’t find the culprit and the thefts continue?

Sometimes in exceptional circumstances the employer might decide secret monitoring is the only option. It’s clearly a tough decision for the salon owner. If they tell staff they have discovered thefts and cameras are being installed then their cover is blown. If they don't tell the staff they may uncover the thefts only to be challenged about the secret monitoring.

There isn't a right answer and there are many factors to consider. It often depends on the owner’s personal viewpoint; how much do they want to catch and dismiss the thief.

A recent case suggested that secret monitoring might be acceptable if:

the employer had a reasonable suspicion that staff were stealing,
the monitoring only lasted until the thief was caught,
the footage was seen only to catch the thief and only viewed by one or two senior individuals.

A question might be-how many employees caught on camera stealing would then make a claim against the employee for secretly monitoring them? You might imagine not many. Nevertheless, it only takes one to cause the employer potential serious embarrassment and a lot of work. Hence an awareness of the risks is key

In simple terms an employee could claim

a breach of data protection
a breach of an employee’s human rights.
undermining an employee’s trust and confidence in their employer.

A Checklist for Employers using CCTV

Every case may differ; the following are basic principles for consideration:

Ensure that the CCTV is targeted at areas of particular risk and confined to areas where expectations of privacy were low. It’s hard to think of a circumstance where CCTV would be in a treatment room.
Consulted with employees prior to the introduction of the CCTV
Inform the employees of the extent and nature of the CCTV and the reason for it
You might decide to draft data protection policies relating to the use of CCTV cameras.
Salon owners should consider putting prominent signage in areas where CCTV cameras are installed.
Don't forget GDPR. Employers should remember that any personal data collected must be used and kept only to fulfil its original purpose. A GDPR-compliant Notice must be prominently displayed.

What About Employees Making Secret Recordings?

This is often ignored by salon owners but is just as commonplace. It’s always a good idea to have a third party taking notes at disciplinary hearing. Many employers agree to record the hearing and have the tape typed up, this avoids any potential conflict. This then takes away any need for the employee to secretly record on their phone What about general discussions with staff? One perspective is don’t say anything you wouldn’t be happy to be repeated!

What if an employee makes a secret recording and using it against the employer at a later stage? You can imagine where there is a difference of opinion how embarrassing it could be!

Is it misconduct for an employee to make a secret recording at work?

Let’s look at an actual case-

During her unfair dismissal hearing the employee disclosed that she had made a secret recording when talking to a manager.

The employee won her claim but the employer appealed and argued her pay-out should have been reduced to reflect her conduct before she was dismissed i.e. the secret recording.

In this case the tribunal had found that the employee had not recorded the meeting to entrap her employer, there was no confidential information involved and other people were not discussed. There had been no breach of the implied term of trust and confidence between employer and employee.

The appeal wasn't successful however, the Tribunal recognised that it is good employment practice for an employee or employer to say if there is any intention to record a meeting, and it is generally misconduct not to do so, except in the most pressing of circumstances.

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