The Use of Camera Surveillance Systems in the Workplace

Knowledge of fundamental human rights is undoubtedly a mark of an advanced society, and awareness of the claims to their protection and exercise should be evidence of a conscious civil society. Difficulties arise where rights of equal legal force stand against one another. With the most commonly used system of workplace supervision, namely camera surveillance, two rights guaranteed by the Listina základních práv a svobod (Charter of Fundamental Rights and Freedoms) collide. The employee's right to personal inviolability derives from Article 7 of the Charter and may be limited only on the basis of a statute.

The legislation applies that constitutional principle at the employment law level, specifically in Section 14(1) of the Labour Code, which provides that the performance of work must not interfere with the employee's rights and privacy without a legal ground. Although labour law was recently recodified, the Labour Code, Act No. 262/2006 Coll., in force since 2007, when the use of camera systems was already highly topical, does not regulate monitoring directly either. Chapter VIII of the Labour Code addresses the matter only in general terms, by a prohibition on the surveillance of employees which is absolute save for statutory exceptions. According to the explanatory report, support for interpretation should come from the Personal Data Protection Act, Act No. 101/2002 Coll. Unfortunately, even after several years of uncertainty as to meaning, no consistent interpretation of the provisions governing the limits on the use of camera systems could be secured. Once the legislative draft of the new Labour Code, which contained no such regulation, became known, the Úřad pro ochranu osobních údajů (Office for Personal Data Protection) issued Opinion No. 1/2006, which sets out a basic summary of the rules on the use of camera systems. From there one may derive by analogy a reference to a further principle enshrined in the Charter of Fundamental Rights and Freedoms, namely Article 10, in which the constitutional legislature lays down the right to dignity and privacy and to protection against the collection, disclosure or other misuse of data about a particular person.

The installation of camera systems at the workplace can in principle be divided into two basic types, differing in the degree of interference with privacy as the law reflects it. The first is continuous surveillance of the workplace, generally carried out from a single point by a person authorised to do so (building security and the like). This type is widely used in supermarkets, among other places, not only to monitor employees and their work discipline but also to protect property (goods) against damage by other persons (customers). Because the footage serves only to give an overview of the situation in extensive or complex premises and no recordings are retained, such conduct on the employer's part cannot be regarded as processing of personal data. For that classification the camera system must meet certain parameters, in particular the requirement that recordings be retained for possible replay. Whereas the first type of recording can be challenged by an action for the protection of personality under civil law, monitoring with retention of data will give rise to a dispute that also involves a breach of the personality protection legislation.

An analysis of the points contained in the opinion leads to a single lawful option for installing monitoring equipment at the workplace, namely installation with the consent of the persons filmed. Consent need not be in writing, but to preserve the legal position of both parties it is advisable for it to be confirmed by the employee's signature. Even so, the employee may withdraw consent at any time under his statutory right. A further difficulty arises where a person unaware of the filming enters the monitored area. For such cases the premises must be fitted with visible notices or graphic indications of the camera system.

Beyond these basic conditions, the operator of a camera system with recording equipment must go through a registration process with the Úřad pro ochranu osobních údajů (Office for Personal Data Protection), demonstrating the degree of interference with employees' privacy and setting the maximum retention period for recordings and the measures securing them against misuse.

The proportionality of the interference with privacy is commonly illustrated by the unlawfulness of placing cameras in the changing rooms of a swimming pool, where the recommended solution is to set aside a special changing area and to place the cameras only in the area used for storing personal belongings. It is questionable how to gauge proportionality in a more prosaic matter, the loss of food and crockery from premises which the employer has set aside for preparing, storing and consuming food. Where all employees have access to the kitchen, the situation cannot be resolved by locking the premises or by posting security staff. In the view published by the Úřad pro ochranu osobních údajů (Office for Personal Data Protection) on 27 September 2012, the loss of food from a fridge is not a sufficient ground for installing a camera system, and it refers to Section 316 of the Labour Code, under which surveillance in common areas is prohibited.

The right to the protection of personality and privacy is undoubtedly the highest value. Yet damage to another right conferred by the Charter of Fundamental Rights and Freedoms, the right to the protection of property, cannot go on being tolerated. Article 11 of the Charter provides that everyone has a right to property and that property also entails obligations; in employment law that principle is put into practice in one of the basic rules embodied in Section 214 of the Labour Code, namely to provide the employee with a favourable working environment. Here the employer, as the driving force of the national economy, is caught in a bind, facing the dilemma of whether to break the law and improve safety and the quality of work at the workplace, or to comply with the law and fail to meet its duties as an employer to protect employees. The only solution lies in adopting legislation with concrete concepts and in greater flexibility for the employer.