May an employer keep an eye on staff with cameras? Camera surveillance in the workplace can…
May an employer keep an eye on staff with cameras?
Camera surveillance in the workplace can help prevent theft or damage to property. An employer can also use cameras to protect staff and any customers. However, employers must meet a number of conditions before they may install cameras. After all, the intrusion on employees' privacy is considerable. Hidden cameras are only permitted in very exceptional cases.
Camera surveillance and the works council
The works council (OR) plays an important role in the decision to use camera surveillance in the workplace. Under the Works Councils Act (WOR), the works council has a right of consent when a decision is made to use an employee monitoring system. An employee monitoring system is any automated system that is suitable for monitoring staff. Even if this does not actually happen but could happen, it qualifies as an employee monitoring system.
Because camera surveillance can also be used as an employee monitoring system, the works council must therefore give its consent before the employer may install cameras. More information about monitoring employees and the role of the works council in this is described further on in the article.
When may my employer install cameras in the workplace?
Your employer may only install cameras if he has a so-called legitimate interest and the camera surveillance is necessary for this purpose.
Legitimate interest
A legitimate interest of your employer can be the protection of property. The protection of you and customers can also be an interest that justifies camera surveillance. Your employer is not permitted to use cameras for the purpose of assessing you as an employee. That would be too great an infringement of your personal privacy.
Necessity of camera surveillance
The camera surveillance must be necessary. This means that your employer cannot achieve the purpose, for example combating fraud, in any other way. Your employer must first check whether there is another means than camera surveillance that is less intrusive on your privacy. The camera surveillance must also not stand alone, but must be part of a complete package of measures.
Privacy test
Does your employer have a legitimate interest and is the camera surveillance necessary? Before he can start camera surveillance, he must first carry out a privacy test. This means that your employer weighs your interests and rights against his own interest. Your employer must also discuss the plans with the works council beforehand.
Duty to inform about camera surveillance
Your employer must ensure that you and any customers know that a camera is installed. For example, by putting up signs. If your employer does not do this, he may be committing an offence.
Use of footage for another purpose prohibited
Does your employer use security cameras to protect employees and/or property? Then he may not use the footage to confront you or to assess your performance. In principle, your employer may only use the footage for the purpose for which it was made.
Monitoring staff
Employers have various ways of automatically collecting all kinds of information about their staff. For example through camera surveillance, telephone exchanges, access gates and computer systems. They can use this information for various purposes, including monitoring their employees.
Monitoring staff is not prohibited. But employers must take the privacy of their employees into account. Employers may therefore not simply follow their staff all day. Monitoring staff is permitted if it happens occasionally and the employer meets the conditions of the Personal Data Protection Act. Is the monitoring carried out in secret, that is, without the employees knowing? Then additional rules apply.
General questions about monitoring staff
What conditions apply to monitoring staff?
An employer who wants to monitor staff must meet the requirements of, among others, the Personal Data Protection Act (Wbp). The most important conditions for monitoring staff are:
- The employer has a legitimate reason (the so-called legitimate interest). This interest outweighs the privacy interest of the staff.
- There are no other ways of achieving the purpose that are less intrusive on the employees' privacy.
- The employer notifies the Dutch Data Protection Authority (CBP) of the monitoring.
- The employer informs the employees about what is permitted and what is prohibited, that monitoring is possible and how it is carried out. This can be done, for example, through rules of conduct or a protocol.
- The employer takes into account the employees' right to confidential communication. For example, when monitoring email or telephone use.
- The employer requests the consent of the works council (OR) in advance for the monitoring.
What conditions apply to the covert monitoring of staff?
For the covert monitoring of staff, in addition to the conditions for 'ordinary' monitoring, the following additional conditions apply:
- The employer has a reasonable suspicion that one or more employees are doing something that is criminal or prohibited.
- The employer requests a so-called prior investigation from the Dutch Data Protection Authority (CBP). The CBP then checks whether the intended covert monitoring is permitted. The employer may only start the monitoring once the CBP has approved it.
- The employer always informs the staff members concerned afterwards about the covert monitoring. This also applies if the monitoring has not shown that the suspicion was justified.
May my employer use hidden cameras?
No, normally this is not permitted. But is there, for example, a lot of theft or fraud within your organisation? Then your employer may, under certain conditions, use a hidden camera (covert camera surveillance).
Conditions for a hidden camera
Your employer may only use a hidden camera if the following conditions are met:
- Despite all kinds of efforts, your employer is unable to put an end to the theft or fraud.
- Your employer has the works council's permission to use a hidden camera.
- The use of the hidden camera is temporary (permanent covert camera surveillance is never permitted).
- The infringement of the employees' privacy is kept as small as possible. Camera surveillance in the toilet, for example, goes too far.
- Your employer informs the employees concerned afterwards about the use of the hidden camera.
- Your employer notifies the Dutch Data Protection Authority (CBP) of the covert camera surveillance in advance and requests a prior investigation. The CBP then assesses whether the use of the hidden camera meets the legal requirements. You can read more about this under Notifying camera surveillance.
Filming for training purposes is prohibited
Your employer may not film you secretly for training purposes. For example, mystery shopping with a hidden camera is not permitted. Your employer may only use a hidden camera to detect, for example, theft or fraud. And even then only as a last resort. For other purposes, such as training, a hidden camera is too heavy-handed a measure.
Even if your employer first asks for your permission to film you in secret, it is not allowed. As an employee, you may feel pressured by your employer to give permission, even though you do not actually want to be filmed. Your permission is then not voluntary and therefore not valid.
Covert monitoring of staff
The use of a hidden camera counts as covert monitoring of staff. Your employer must report this monitoring to the Dutch Data Protection Authority (CBP). The CBP then investigates whether the monitoring is permitted. You can read more about this under Monitoring of staff.
Source: Dutch Data Protection Authority (College Bescherming Persoonsgegevens)
