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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor
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We have a situation where two employees, working in the same

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Hi,We have a situation where two employees, working in the same department, one being an apprentice the other is the apprentice's Team leader therefor in a position of seniority.They have been heard through an audio recording in a store cupboard to have been kissing and sexual moaning also heard in the recording.This is happening during the working day, in a business location, the apprentice is 21 (Female) and the Team Leader is 35 (Male).The business operate a CCTV system for which there are signs on the front and rear entrance stating the purpose and other legal information for the CCTV usage.There is also a set of policies and procedures which sets out that employee may be electronically monitored during their working day.My question is, I now want to install a covert camera in this store cupboard to retrieve evidence that what they are doing is during work time and proves misconduct.Can I do this without telling the specific two employees in question ?Thanks

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

How long have they each worked there for?

Customer: replied 6 days ago.
Hi Ben,The Team Leader has worked for the organisation for 10 years +The Apprentice has complete a 1-year apprenticeship and is a third of the way through her second 18-month apprenticeship.

Thank you. Monitoring of employees in the workplace is not uncommon and there are various reasons why an employer may wish to do so. When there is a genuine reason for monitoring employees, such as security, training, legal obligations, etc the employer would normally be justified in doing so, as long as it is conducted in an open and reasonable manner.

As far as the law is concerned, monitoring in the workplace is covered by the Data Protection Act 1998 (DPA). As such, the employer must adhere to a number of principles set out in the DPA, which include:

· obtaining the data fairly and lawfully

· informing employees of the types of monitoring that are being used

· using the data obtained from monitoring only for a specific purpose

· limiting the data to adequate and relevant data

· not holding the data for longer than necessary

In addition to the above principles, the Information Commissioner's Office has published a Code on monitoring in the workplace. The Code states the following:

{C}· If monitoring is to be justified on the basis that it is necessary to enforce the organisation’s rules and standards, these rules an standards must be known and understood by workers

{C}· The employer should set out a policy detailing under which circumstances monitoring may take place, the nature of monitoring and how information gathered from it may be used

{C}· It is a fundamental principle of data protection that employees are aware of the monitoring taking place

{C}· Video recording of employees will be allowed in rare circumstances, such as if they work in particularly hazardous areas or if security is a major concern. If it is carried out, prominent signs advising employees of this must be in and around the affected areas.

Covert video monitoring is even more restricted and may only take place if open monitoring is likely to prejudice the prevention or detection of crime or equivalent malpractice or the apprehension or prosecution of offenders. What these employees are doing is not a crime and you would be advised against covertly video recording them just to prove misconduct.

Finally, there is the issue of human rights. Under the Human Rights Act every person has the right to private life so if there is evidence that an employer has invaded that privacy the employee could raise this issue against their employer. General monitoring that is justified and that meets the criteria set out above is unlikely to invade one’s privacy, but covert monitoring or monitoring in areas where some privacy could be expected (e.g. toilets, private rooms, vehicles, etc.) without the above principles being adhered to could be unreasonable and possibly even unlawful.

In fact, the requirements of proof in employment are not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. Disciplinary can be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. You therefore do not need concrete evidence.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Customer: replied 6 days ago.
Hi Ben,Thank you for the full and detailed reply, this is most helpful and yes you have almost answered all areas of concern, could you just clarify, where you have said:" but covert monitoring or monitoring in areas where some privacy could be expected (e.g. toilets, private rooms, vehicles, etc.)"The store cupboard in question contains a huge amount of valuable equipment and is accessible by all member of the department in question (8 staff) therefore would you say that these two individuals should/could expect to have privacy ?Many Thanks

I would say there is a degree of expectation that a store cupboard, where employees would only go from time to time and only when necessary, would be private. It is not open office space, it is not a throughway and it is only visited from time to time if someone needs to get something from it, so most of the times it is considered more private than other, more open spaces in the workplace. Hope this clarifies?

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Customer: replied 6 days ago.
Many thanks Ben.

you are most welcome