Procurement and Processing of CCTV Footage – How do I handle it?

Posted in : How Do I Handle It ROI on 16 April 2019
David McCarroll
Issues covered:

The query relates to an offsite staff event where a disputed physical altercation arose. There are contradictory witness statements and the host restaurant’s CCTV system could, if secured, corroborate and even determine otherwise conflicting evidence. However, can an employer get the footage and can they use it?  How do I handle it?

In the course of employment

A number of issues fly off the page here. Firstly, an employer needs to be satisfied an altercation during an “off-site staff event” is a matter that can be said to have occurred in the course of their employee’s employment. Why? Because the employer needs to be sure that their policies actually apply in this instance. Is this a private matter or a work matter within the scope of our suite of protective policies?

Much will depend on how our policies and procedures address the scope of their jurisdiction. An official company run staff event outside of work is clearly going to come within scope. However, colleagues at work may indeed gather socially, in a much looser fashion and an employer needs to be sure where they stand at the outset in terms of the scope of their policies.

Right of access to CCTV footage

Secondly, we need to consider the issue of the CCTV footage. It is certainly the case that data subjects filmed by the restaurant’s CCTV footage have a right of access to same. The investigating employer, however, is technically not the data subject and it would be safest to have the employees seek the data directly from the restaurant. To tee that up, witnesses could be asked at their interviews if they are aware of any CCTV footage and whether such footage would be likely to corroborate their evidence. Phrased in that manner, it would seem less likely that a party would object, as to object might be somewhat undermining of their own evidence. They can be asked if they would be prepared to assist the investigation process by facilitating access to the footage. The note of the meeting should reflect the discussion on these points.

In following up, when the investigator is furnishing any note of the witness meeting they could use that opportunity to point to the previous discussion held on the access of CCTV footage and furnish a subject access request form (to be signed and issued from the employee to the restaurant). The tone and focus should be on their facilitating us with additional evidence as this should not be a forceful demand made of them, which could potentially draw concern from the Data Protection Commissioner. It would make practical sense for the employer to collate the access requests and issue them in one batch to the restaurant, acting on their employee’s expressly granted authority if possible.

Using CCTV footage to aid decision making

In fact, the Data Protection Commissioner’s Annual Report for 2018, within one of their published case studies, addressed a complaint made by a data subject objecting to a bar’s processing of their CCTV footage to an employer in the context of an investigation into an alleged serious assault. The DPC cited the potential for a refusal to process such data impeding the employer’s statutory health and safety obligations and on their ability to properly investigate such a serious incident before determining that “it was reasonable, justifiable and necessary for the bar to process the CCTV footage by providing it to the employer organisation, and that the legitimate interest of the employer organisation took precedence over the rights and freedoms of the complainant, particularly given that the processing did not involve sensitive personal data and there had not been excessive processing”.

Finally, it’s worth pointing out that whilst one could be lucky, such CCTV footage is often by its nature unclear and indecisive from an evidence perspective. However, even if that transpires to be the case, the very existence of any such footage is likely to be a key plank of any employment claim that might arise.

Taking appropriate steps to properly secure such evidence, even if we ultimately fail to secure the footage, will stand to an employer in terms of the reasonableness of their process. At any Workplace Relations Commission or Labour Court hearing, an employer may naturally be asked about any such footage. If the employer is seen to take reasonable steps to procure such evidence then it helps either safely underpin their reliance on any such evidence or, if we don’t secure it or it is unhelpful, it clears that issue away so that any other relevant factors or evidence can instead be relied upon.

This article is correct at 16/04/2019

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David McCarroll

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