Challenges justifying covert surveillance of employees

May 20, 2013 0 Comments Bloggies by Graham Penrose

Recently a decision was made in a European country concerning the justifications required by employers before sanctioning the covert surveillance of employees by external parties. The Data Protection authority in question received a complaint from an individual concerning the processing, without his knowledge or consent, of both his and his children's personal data by his employer. The complaint involved the obtaining and processing of his personal data and that of his children by way of a private investigator producing footage of his movements and his children's movements on a DVD for the company without his knowledge or consent.

The Data Protection authority in question commenced an investigation into the matter by writing to the company. They informed the company of its obligations under the Data Protection Acts and asked for its comments on the complaint. The company informed The Data Protection authority in question of the circumstances which led to it hiring a private investigator to check on the employee's activities. According to company, the complainant was employed as a sales representative and, as such, spent virtually all of his time away from the company's premises. It stated it became concerned that the employee was not carrying out his duties as required by his contract of employment and it decided it was necessary to check on his activities in his sales territory. A private investigator was engaged to check on the employee's activities in order to establish whether or not he was performing his duties. The private investigator recorded the movements of the employee for a period of approximately one week and produced a DVD of those movements which he provided to the company. Some of the recordings produced on the DVD also contained images of the employee's children.

The Data Protection authority in question remained concerned about the justification for the processing of the employee's personal data by way of the private investigator recording his movements. They asked that the company review any documentation it had which it believed may suggest that the processing of the employee's personal data in this way was justified. Subsequently a range of documents were received in that regard. The company was also asked if it had taken any steps to address the concerns it had about the employee's activities prior to the hiring of the private investigator - to which it replied that it believed there were no other steps it could have taken. The company stated that it felt it needed to make observations of the employee's company car over a period of at least a week before it could be satisfied that the employee had a case to answer.

The company stated that it did not have the resources internally to check this over such a period of time and for that reason the private investigator was asked to check and report. Having considered the case put forward by the company and the documentation submitted, the Data Protection authority in question informed the company that they considered that the processing of the employee's personal data by way of a private investigator recording the employee's movements was not justified as it had not taken appropriate steps to highlight its concerns to the employee prior to making the decision to hire a private investigator to record his movements. The Data Protection authority in question also requested that the DVD in question be destroyed and they subsequently received confirmation of its destruction from the company.

Covert surveillance of individuals is very difficult to reconcile with the data protection and privacy legislation in Europe. As a minimum and this may not even make such surveillance legal, there must be strong and evidence based justification for such surveillance in the first instance.