Cameras in workplaces - what to watch out for?

Workplace cameras are one of the tools that can be used to monitor employees. However, their use in accordance with the law is far from straightforward, as it is also necessary to respect the boundaries that define the privacy of employees. What rules apply to the operation of CCTV systems in the workplace? And what do the competent authorities say about monitoring employees at work? We will address these questions in this article.

Legal basis

The use of cameras in workplaces is, of course, regulated by law. The basic rule can be found in the Labour Code, which only allows an employer to monitor his employees
provided that it has a compelling reason to do so, based on the specific nature of the employer's activities. Thus, it is always necessary to assess whether or not in a particular case the employee's interest in privacy outweighs the employer's interest in monitoring employees (the so-called balancing test). The use of cameras will only pass the balancing test if there is no other less invasive method that would also achieve the employer's objective (typically, for example, the supervision of a supervisor). Needless to say, surveillance within certain areas such as toilets or changing rooms is completely inadmissible.

What are my obligations as an employer?

If an employer chooses to use cameras, he or she must not forget other statutory obligations. First of all, employees must be informed in advance. At a minimum, the employee should be told:

• what data will be collected by the employer,
• where such information will be collected,
• for what period of time the information will be collected,
• who will have access to the information,
• who will carry out checks on the information collected,
• which data will be archived on a long-term basis, if any; or
• what security measures are in place to prevent unauthorised access.

The employer should also post information signs and define the details of the process of taking CCTV footage in an internal regulation. Inspection of the footage should then be immediate (usually within a maximum of 3 days), including for the purpose of dealing immediately with, for example, an employee's unlawful conduct. If the employer does not find anything relevant during the inspection, there is no reason to keep the footage. The employer should also not forget to keep records of the processing activities pursuant to Article 30 of the General Data Protection Regulation (GDPR), the obligation to carry out an impact assessment pursuant to Article 35 of the GDPR, or to make the entire process transparent by allowing the employee to view the recording.

Hidden tracking

Employers are generally only allowed to conduct open surveillance of employees where employees are informed about the CCTV system. However, there are exceptions that allow covert surveillance, as confirmed by case law. The Supreme Administrative Court has already stated in its decision-making practice, for example, that covert surveillance may be justified if it has not been possible to prove the monitored fact in any other way. The European Court of Human Rights (ECtHR) has taken the same position in its decisions, for example in Köpke v. Germany and López Ribalda and Others v. Spain. In both cases, the ECtHR took into account that the covert surveillance took place only for a certain period of time
and was targeted at employees who were strongly suspected of committing unlawful acts. It should be added that in both cases the suspicions were confirmed and thus the covert surveillance led to a conviction for an infringement.

What about the dummy cameras?

Even the use of dummy cameras in the workplace can cause unexpected legal problems for employers. Even if such a device does not process any personal data, which means there is no GDPR violation, dummy cameras can cause undue stress for employees and the feeling that they are constantly being monitored. The Labour Inspectorate has already ruled in this regard in the past, finding the installation of a dummy in breach of §Section 302(c) of the Labour Code, which obliges employers to create favourable working conditions and ensure occupational safety and health. Thus, employers should not install dummy cameras to make employees "uncomfortable" at all.

Conclusion

As can be seen, the operation of CCTV systems in workplaces is a very complex and difficult issue that should not be underestimated. Poorly set up CCTV systems can lead not only to fines from the relevant authorities, but also to a breach of working relationships, privacy or employee trust. Therefore, it is always advisable to consult with an attorney before implementing any surveillance system to help you avoid unnecessary legal complications and set up the system in accordance with applicable regulations.