Application of the Data Protection Act

The DPA and the use of electronic measuring devices, including CCTV in the workplace. Case ref: 2.1/ May '04

Summary of case

This case involved different opinions/interpretations of the Data Protection Act and the use of electronic measuring devices in the workplace.

Advice requested

PCS was concerned about the way in which one department were seeking to use electronic recording facilities (CCTV, swipe cards, electronic keys etc) for the conduct of disciplinary procedures.

Key advice provided by Thompsons

"The use of CCTV and other forms of monitoring, to comply with the Data Protection Act 1998, must be detailed in a policy or communicated to all employees in some other way. The employer needs to set out to all its employees either within a policy or by some form of communication why the CCTV is installed and for what purposes.

"The employer is then under an obligation to restrict its use to the purpose set out to the employee. If the employer goes beyond what has been set out to any employee either in a direct communication or in a policy, there may well be a breach of the Data Protection Act. This is also the case if there has not been any communication or policy at all. 

"I am assuming at this stage that a complaint has already been made by your member to his employer. If not, one should be made now that legal advice has been taken and the advice is that this is potentially in breach of the Data Protection Act. Obviously, in giving this advice, I have not been party to any policies or communications and therefore I am assuming that there have not been any. Your member can argue that as the information obtained was obtained illegally that it is not admissible and therefore not relevant to any disciplinary proceedings or any other proceedings for that matter. 

"Further, if your member has not done so already, my advice to him is to make a request for an assessment by writing to the Office of the Information Commissioner, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF. In doing so, your member should state clearly why he believes there has been a breach of the Data Protection Act and ask the Information Commissioner to carry out an assessment of that potential breach. 

"If the Information Commissioner agrees in the report that there has been a breach of the Data Protection Act, your member may be able to claim compensation under Section 13 of the Act for any damage he has incurred as a direct result of your member's employers' breach."

Legal Department comment

Representatives requiring advice on how the DPA applies should contact their bargaining unit, who in turn can seek help from the Thompsons solicitor who is a specialist in this area of employment law. 

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