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Data Protection

The Use of CCTV in Disciplinary Hearings in the Workplace-Interesting High Court Decision (February 2020)

The conflict of rights in the workplace between employer and employee concerning the use of cctv in the workplace, and its use in disciplinary processes, was dealt with by the High Court in February 2020. The case was Doolin v The Data Protection Commissioner [2020] IEHC 90 and it was an appeal from the Circuit Court where Doolin, the employee, had lost.

The purpose of CCTV gathering in this workplace was for “security purposes”. On that basis Doolin argued that the employer could not use that CCTV footage in a disciplinary process.

Generally, the use of CCTV in the workplace must be “necessary and proportionate”. This means it should only be used for the stated purposes, unless it has been made clear at the outset that the gathering of the cctv data may be used for these other purposes-for example investigating offences or prosecuting offenders or disciplinary procedures.

The Grand Chamber of the European Court of Human Rights has held that the use of covert surveillance in the workplace may be justified if reasonable suspicion of serious misconduct has occurred. You can read a blog post here about Lopez Ribalda and others v Spain.

The key takeaways from that case are

  1. The employee’s right to privacy in the workplace is not absolute
  2. The employer’s action must be viewed in the light of the specific facts of the case and whether the steps taken by the employer were in pursuit of a legitimate aim and were necessary and proportionate.

Doolin v The Data Protection Commissioner [2020] IEHC 90

Doolin had been disciplined in the workplace arising from the taking of unauthorised breaks in the workplace. These had become apparent when the employer had found threatening graffiti in Our Lady’s Hospice and Care Service in Harolds Cross and had been advised by an Gardai to monitor who had access to the room in question.

This was how the question of unauthorised breaks by Doolin arose.

Doolin complained to the Office of Data Protection Commission about the use of CCTV in the disciplinary process and the unlawful use of his personal data.

The Data Protection Commissioner held that the purpose of gathering the CCTV was advised in advance as “for the purpose of health and safety and crime prevention”. Because the original viewing of the CCTV was for a security purpose-that is, to try to find out who was posting the graffiti-the subsequent viewing of the data for the disciplinary process against Doolin was not for a different purpose.

Doolin appealed this decision to the Circuit Court who upheld the decision of the Data Protection Commissioner. Doolin then appealed to the High Court.

The High Court agreed with Doolin insofar as it held that if the employer had intended to use CCTV in disciplinary proceedings in the workplace it should have made this clear in its data protection policy. It changed its policy in later years to reflect this but this was not the case at the time Doolin was disciplined.

The High Court held that the Circuit Court and the Data Protection Commissioner were incorrect in finding that no further processing of the data had occurred in the disciplinary process.

Interestingly, it found that if the data protection policy had reflected, as it later did, that cctv could be used for “for the purpose of a disciplinary investigation” it would have been acceptable to discipline Doolin with the assistance of the cctv; but that was not the case when Doolin was subjected to the disciplinary.

The High Court held, inter alia,

I am therefore overturning the decision of the Circuit Court on the basis that there was no evidence for the conclusion that the disciplinary action, in which information derived from the CCTV footage was used, was carried out for security purposes.

The High Court also concluded,

The information used by the Panel to arrive at their conclusion that the Applicant had taken unauthorised breaks derived inter alia from both the CCTV footage and fob access records. Accordingly, it is indisputable that the information contained in the CCTV footage was used for the disciplinary proceedings, which use constituted a different purpose from the one for which the data was originally collected. The fact that it was not downloaded for use does not mean no further processing took place.

Conclusion

For the reasons set out in the Decision,

I: (a) allow the appeal against the decision of the Circuit Court on the basis that there was no evidence for the conclusion that the use of the CCTV footage or material derived from it in the disciplinary hearing was for security purposes;

 (b)  conclude that the DPC made an error of law in holding that no further processing took place as this conclusion was founded upon an incorrect interpretation of “processing” having regard to the terms of s.2(1)(c)(ii). 

64. Having regard to the above, I uphold the appeal and set aside the conclusions of the DPC in the Decision to the effect that no contravention of s.2(1)(c)(ii) occurred. 

65. I am conscious that s.26 simply provides for an appeal to the High Court on a point of law but does not prescribe what should happen in the event of a successful appeal. I therefore propose to hear the parties on the form of Order, including whether the matter should be remitted to the DPC. [Note: At a costs hearing on 25 February 2020, the parties indicated that no remittal should be made to the DPC and an Order was made in the terms of paragraph 63 above].

Read the full decision in Cormac Doolin and The Data Protection Commissioner and Our Lady’s Hospice and Care Services 2019/2011CA.