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UK-Justice
UK-Justice, Barrister
Category: UK Employment Law
Satisfied Customers: 16193
Experience:  Called to the Bar in 2007
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Hi, My girlfriend recently got fired from her employment

Customer Question

Hi,

My girlfriend recently got fired from her employment because she was caught smoking a cigarette in a doorway (inside to outside). She was on a final warning for a completly unrelated matter in May last year. (her employment teminated with 3 weeks pay as she had worked their 3 years).

She was shown the CCTV images in her meeting with her manager but she was unaware to the severity of the incident and had forgotten she was on a final warning so went into the meeting very unprepared.

However, after doing some checking it would appear the company that she works for who has around 40 employees and a full CCTV system does NOT have a Data Protection License which is my understanding that they need by law.

Since they do not have a license to operate this system and the system has been in place over 2 years are, the images inadmissable? I have read that they are inadmissable in court but if she appeals the companies decision is the CCTV evidence inadmissable? And if it is inadmissable under which employment law/act would this fall under?


Thanks, Rob
Submitted: 2 years ago.
Category: UK Employment Law
Expert:  UK-Justice replied 2 years ago.
Thanks for your question. Please remember to click ACCEPT once you get my answer.

When was she dismissed?
Customer: replied 2 years ago.
She was suspended on full pay on 23rd April 2012, a meeting was held on 30th April 2012 with my girlfriend where she was subsequently notified of their decision on May 1st.

A subject access request was sent to them on the 3rd of may with a request to extend the ACAS appeal time to that of when she receives her data in full plus 7 working days to produce her case.

After looking at the ACAS guidelines it would appear that my girlfriend should only be liable for a verbal/written warning, however, as mentioned before she got a written warning in May last year and to be more specific the 20th May 2011. Therefore they terminated her employ a mere 20 days prior to the expiry.

On the CCTV matter from my understanding the company has breached:

Apendix 2 and 3 of Data Protection Act 1998.

Article 8 of the European Convention of Human Rights.

I also beleive that in additional to this:

They are in clear breach of sections 17 and 55 of the DPA.

I just dont know how this can be used to win her appeal if at all possible.

Regards,

Rob

Expert:  UK-Justice replied 2 years ago.
Appeal with her employer or at Tribunal?
Customer: replied 2 years ago.
Well this really is one of the decisions that needs to be made. At this time im sure it would be with the employer, i would need to check if that is a procedual thing within ACAS (i.e. employer first then tribunal). However, the employer has granted an extension for the appeal so i assume they expect it to be lodged directly with them.

From what i understand, in a tribunal, the images cant be used because there unlicensed. (but again unsure - hence the question). And if it was inadmissable in a tribunal her dismissal would be overturned as that is the only evidence they relied on to dismiss her.

Further to that if the images are inadmissable in a tribunal then surly the same would apply to an internal investigation within the company. So in theory something along the lines of (at the appeal to the employer).

"You are using an unlicensed CCTV imaging system for the purposes of monitoring the public and your work force which is requried by law for you to register with the DPA and obtain a license. Since you have used these images in a investingation against myself which resulted in my dismissal i would like the decision to dismiss me overturned and the option to have my job returned or fairly compensated for unfair dismissal."

This is what im hoping i can put to them for her.
Expert:  UK-Justice replied 2 years ago.
The test for an employer is simply this:

Does the employer have an honest and genuine belief the misconduct took place?

If the answer is yes then that is enough for dismissal.

A Tribunal would only test this - if the employer really did believe the incident happened then that will be enough - a Tribunal would not over turn the decision.

They may not have a licence and that would be a Data Protection issue, but that is a separate matter all together and not related to the conduct.

She may complain to the Information Commissioner but that does not mean the employer can not rely on this.

Please remember to click accept so that I am credited for my time. Thank you.
Customer: replied 2 years ago.
Thank you for your answer but it is somewhat confusing. The employer surly must be able to produce reliable evidence in order to dismiss someone.

Whilst the complaint is smoking in a building its in a door way with the cigarette outside, at best this is not a 'clear' breach of the rules but maybe a 'misunderstanding' of the law. It is not Gross misconduct and falls within the rhelms of a verbal or written warning (as outlined from ACAS). However, since she was already on a final warning this is how she was dismissed.

Now the employer relies on CCTV footage to prove the incident took place which must be licensed by the ICO. An extract taken from 'your rights' website.

The Employment Tribunal generally does not have formal rules about what evidence is admissible and if a party to Tribunal Proceedings wishes to rely on CCTV recordings in support of their case, the Tribunal is likely to allow it if the recordings are relevant to the proceedings and will help clarify the issues and allow it to meet the overriding objective of the Tribunal, which is to deal with the case justly.

However, anyone who captures and stores images through a CCTV system is likely to be required to comply with the Data Protection Act (DPA), as the images are likely to contain personal data. The DPA imposes a number of duties on anyone who processes personal data. If your employer failed to comply with his duties under the DPA in obtaining the footage, it is likely that he will not be fair to allow him to rely on the footage in any proceedings against you. For more information on the DPA see the Information Commissioner’s website at www.ico.gov.uk

The recording of CCTV footage may also be an interference with your right to privacy, protected under Article 8 of the European Convention of Human Rights. Although this right is not absolute, any interference will need to be done in accordance with the law and it must be necessary to achieve a legitimate objective. If your employer failed to comply with the DPA, then the interference will not be ‘in accordance with law’ and therefore breach your Article 8 rights. In addition, any filming that is disproportionately intrusive will breach your Article 8 rights.

SOURCE: http://www.yourrights.org.uk/faqs/workplace-faqs/can-my-employer-use-cctv-footage-in-employment-tribunal-proceedings.html

This is the clarification im trying to get to my original question. Can an unlicensed CCTV system capture images and subsequently be used in a disciplinary hearing? According to your 'your rights' evidently not!

However, what you are saying is "Does the employer have an honest and genuine belief the misconduct took place?" Well the belief would not be there if it had not been for the CCTV footage? An employer surly must prove beyhond reasonable doubt (especially when it comes to dismissing someone) that the evidence is 100% correct.

By definition of the DPA the system should not be used without a license, with this being the case, how can the system be used to proof an incident took place?

Now the argument could be made that yes she was seen smoking in a doorway which is subject to diciplinary action, however, the images have been obtained illegally so i really need to go back to my original question.

Can unlicensed CCTV images be used in employment disciplinaries?

Expert:  UK-Justice replied 2 years ago.
Human Rights does NOT apply to employers - unless they are a public body.

This is because Human Rights only applies to the government.

Therefore A.8 can not apply to your employer (unless public body) and in that case yes the DPA can be a breach.

However it was before a Tribunal they can also consider the DPA breach.

But if they are not public body then yes, the images CAN be used.

Please remember to click accept so that I am credited for my time. Thank you.
Customer: replied 2 years ago.
Hi,

Ok, now im totally confused. Although not spefically a route im looking to take anyway, I thought A.8 was for the protection of everyone?

However, that being a European Convention and a Human Rights issues it is obviously a more difficult route to take and not one i was really looking at. It was more specifically to do with the DPA.

As mentioned in my last reply and quoted from 'Liberty':

The DPA imposes a number of duties on anyone who processes personal data. If your employer failed to comply with his duties under the DPA in obtaining the footage, it is likely that he will not be fair to allow him to rely on the footage in any proceedings against you.

Surly this means that any and all CCTV images captured with a public authority or a private company cannot be used. Whilst i appreciate there is a DPA issue in regards XXXXX XXXXX private company not possesing a DPA license is it enough to have the recording dismissed?

The DPA clearly states that if you are to use a CCTV system for the purposes of monitoring the public or workforce you must have a license. Yes i understand that the are liable to prosecution under section 17 and maybe 55 but it is my understanding that if a crime takes place (lets say theft) on private premises using a CCTV system operated by the private company the footage is inadmissisable as evidence as the system has to fully comply with Appendix 2 & 3 which would not be know if no license was issued.

Again you mentioned in your previous answer:

"Does the employer have an honest and genuine belief the misconduct took place?"

If there was no CCTV system then the answer to this question would simply be "NO". However, if the private company is using a CCTV system which does not comform to the law then how can they use the footage?

Additional Notes: After speaking with the ICO on Friday they did confirm that the company in question must be licensed.
Expert:  UK-Justice replied 2 years ago.
A.8 applies for protection to individuals from the STATE.

So any public body - NOT private. So for example Tesco etc can't breach Human Rights.

But a local Council can.

Yes I agree a company should be licenced. But if they have footage that supports the misconduct then it CAN be used, BUT there would be a separate cause of action against them for breach of data protection - NOT unfair dismissal.

Human Rights only applies to breaches BY public bodies, not companies or individuals.

I hope this clarifies.

Please remember to click accept so that I am credited for my time. Thank you.
Customer: replied 2 years ago.
Hi,

Thank you for your answer. Ok so with regards XXXXX XXXXX action would this be action that the ex-employee can take against the company in addition to direct action from the ICO or is it merly the ICO that can take action?

So for clarification she has no grounds to have the CCTV images dismissed but she could have grounds for compensation becuase they breached the Data Protection Act by not having a license?

Technically speaking they have been recording her for two years without a license so would she be able to make a claim under section 13?
Expert:  UK-Justice replied 2 years ago.
This would be an action she could bring under the DPA.

The ico can take action but also your girlfriend is.

No grounds in relation to CCTV images I am sorry,

Yes you could make a claim under section 13

Please remember to click accept so that I am credited for my time. Thank you.
UK-Justice, Barrister
Satisfied Customers: 16193
Experience: Called to the Bar in 2007
UK-Justice and 2 other UK Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Hi,

Are you able to tell me WHY they are able to USE the CCTV images if its in breach of the Data Protection Act. The system is designed specifically to monitor the work force with the majority of cameras in NON public places and are placed in administrative environments such as offices (another clear breach of the DPA).

So under which legislation and what section of that legislation does it make it lawful for a company to use personal data such as CCTV images in relation to dicipline when it it by definition there unlawfully.

Simply saying it CAN be used doesnt help as to WHY and HOW it can.
Expert:  UK-Justice replied 2 years ago.
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Customer: replied 2 years ago.
Hi,

Yeah i know i already own my own license. However, the system needs to be audited and alot of information needs to suppied especially under Appendix 3 i think.

In addition to this, the sytem layout and design would prevent the company from getting a license anyway.

However, your saying that the evidence can still be used if they are apply for a license now?
Expert:  UK-Justice replied 2 years ago.
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Customer: replied 2 years ago.
Under what legislation is this possible and under what section of that legislation?
Expert:  UK-Justice replied 2 years ago.
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