In the 2013 Data Protection Commissioner’s Report, there is a significant increase in the number of complaints against employers specifically involving the use of CCTV monitoring.

CCTV monitoring must be proportionate and transparent, with the stated use of the CCTV clearly outlined – i.e. for security. This right has been upheld in a number of cases where supermarkets and shops have legitimately used their CCTV footage following reporting of irregularities either on the tills or on review of stock takes.

However, the use of mobile phone photos can be very contentious. In a recent case, a hotel Assistant Night Manager took a photo of a sleeping night porter – this was initially looked on as a ‘joke’, however the photo then turned up in an investigation into the night porters sleeping on the job. The hotel stated that the case was based primarily on the evidence of the Assistant night Manager and NOT the photo. However, the Commissioner found that the Night Manager was not authorised to record images on his mobile phone and that measures had been put in place to prevent the recurrence of inapropriate use of mobile phones/phone images.

Also, employers need to be careful in using the word ‘CONFIDENTIAL’ to withold documents. The Data Commissioner has ruled that a data subject can get access to personal data where there is not an opinion given in confidence. This has implications for employers who believe that emails and documents are confidential because they have this stated on the document/email – but could, in fact, be requested by employees or third parties under the Data Protection Acts.

In summary, care is needed by employers in the use of CCTV, mobile phones and images being used as part of evidence, and the reliance on confidentiality to withhold materials. We suggest you obtain advice from your HR provider in any such situation.