“I have a customer who has been covertly recording an employee whilst at work. Are there any potential liabilities to us as an employer as a result of this?” Covert recording is an increasingly common phenomenon in the modern workplace. The development of technology, in particular recording Apps on mobile phones, as well as dash cams in cars has meant that the risk of covert recording has increased. Garages need to be aware of the issues raised and consider what policies to put in place in advance in order to ensure you remain on top of the issue. But what is the legal position? The Law The use of CCTV is covered by a number of acts of parliament. However, most of these are designed to regulate the use of CCTV by the government and public bodies. The main act to cover private use of CCTV is the Data Protection Act 1998 (DPA). This provides general principles that govern the collection and use of data, including CCTV Footage. All personal data must be collected and processed in line with the DPA and the principles established under it. The collection must be Fair and lawful For a legitimate and defined purpose Retained only as long as reasonably required. As the controller of any system would have to comply with DPA, the Information Commissioners Office has produced a code of practice for surveillance cameras and personal information code of conduct . Video images will usually be considered as an individual’s personal data if the individual can be recognised from them. The Data Subject will likely be entitled to any recordings and can make a subject access request to the Customer for them. Any refusal to provide this can be reported to the Information Commissioners Office as well as the Police. However, it will be for these organisations to decide the seriousness of any breach and whether it is in the public interest to act. Fair and Lawful Consent is needed before any person can be recorded. Where this recording is carried out in a public place then such consent can be implied. This will not apply where any filming is carried out in an area where privacy can be expected e.g. if the workshop in question was a private area with no viewing area open to the public. Can I Object? In a public area, no. However, any recording on private property can be restricted by the property owner. As such even with clear signage on the vehicle any motor trader can limit or camera use on their premises. You can consider displaying a notice or relevant terms and conditions and policies to ensure that steps are taken to minimise any data protection risks to staff, ensuring that staff are aware of the risk of (inadvertent) photographing or videoing and that they know the steps to take if they wish to raise concerns about the conduct of a customer. What are my risks? The 2 main areas of risk as a business, Documentation of conduct that may harm your reputation or for use in a potential legal dispute, and Breaches of your duty as an employer to the staff in question. Harm to Reputation, and Contractual Disputes This risk is difficult to minimise, and in this case prevention is better than a cure. A basic precaution would be to be vigilant. Whilst we are yet to see any significant security problems due to covert recordings, there have been several instances where it documents problematic staff behaviour. This has ranged from harmless but unflattering comments about the owner to poor workmanship and speeding during a test drive. Where a camera is present, staff should at least be on their best behaviour. As both the property owner and employee can withdraw such consent, businesses can put clear policies in place to prohibit and/or limit the use of camera etc. However, query whether you want to limit camera use for example if that may assist with any insurance claims etc. There are many legitimate reasons for prohibiting video recordings on your premises. These can include protecting customers’ privacy and property from damage or to protect sensitive data/security. However, customers may want to know why this was necessary and what is the business hiding. Duty as an Employer The 2 main areas of risk as a business, Harassment of Employees, and Breaches of Trust and confidence Harassment Consideration should be given to the reason for the recording and how it may be used. Whether the videoing/recording of an employee at work may amount to harassment, harassment that relates to a protected characteristic (e.g. sex), or harassment of a sexual nature (sexual harassment). An employer has no explicit liability under the Equality Act 2010 (EqA 2010) for the harassing actions of other third parties. However, separately, employers have a duty to take reasonable steps to prevent sexual harassment of employees (EqA 2010, s 40A). It is clear that the duty to prevent sexual harassment includes prevention of sexual harassment by third parties. In the context of suppliers, an employer should consider having a contractual provision with the supplier to require the supplier to provide undertakings that they will take steps to prevent any sexual harassment by their staff. Trust and confidence The term or duty of mutual trust and confidence is implied in every contract of employment. This requires employers and employees not to conduct themselves, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. If there has been a breach of trust and confidence by the employer, then there is the risk of a potential constructive unfair dismissal claim if the employee resigns as a result of a breach. Conclusion Video and Audio recordings are an increasing risk. There is no right answer in this area. Recordings can establish good practice and reputation, but they can also result in damage to your reputation and/or harassment of employees. For example footage could mean that the layout/ contents of your Worksop could be put online or that alarm and security codes are recorded and staff may feel intimidate and/or harassed. Our advice is to put a clear policy in place in advance so that staff and customer are aware of their responsibilities and what actions will be taken with regards both the presence of recording equipment as well as the behaviour expected where they are present. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate. Don’t forget, as an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate. Motor Industry Legal Services Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.