filming of work colleague against their human rights?

[benn25]

Would like some advice please. I had been told by members of my team that a work colleague had been doing something which is paramount to gross misconduct. On doing a spot check I filmed the accused work colleague in the act doing the very thing they had been accused of by others and they have now issued a grievance against me for filming them. I am now being told by my supervisor that it was against their human rights and have been told to get rid of the evidence and im going to be probably reprimanded for it.
Now my issue is this. I dont think ive done anything wrong. The purpose of the filming was to gain hard evidence so that I could offer it to my supervisor in the event it went to disciplinary and it boiled down to my word against theirs. Or if other members of the team refused to come forward. The said act by the accused was not in a private place, ie in a toilet, but in an area which is of communal usage (a lounge). The film only shows the evidence of the complaint.
Ive looked at Article 8 of the human rights act and it only mentions that it may be illegal if it contradicts their rights to respect for private and family life, home & communications. This filming, for me, doesnt break any of those rules. On continued research i also believe that its not the act of filming which is illegal but the usage of the media.
Also ive read that it may be illegal if the employer does not tell the employee that they will be filming them. However, im not an employer, im just an employee, so does that include me? Im very confused and would like some clarification on where I stand please. Do employees have privacy rights at work even in the act of gross misconduct? Thanks in advance. Oh I should say there is no policy at work covering employees filming other employees without their permission.

[enquirer]

Re: filming of work colleague against their human rights?

Would like some advice please. I had been told by members of my team that a work colleague had been doing something which is paramount to gross misconduct.

'Your team'. Are you in a position of authority?
What was the nature of the supposed gross misconduct? Did it break any law?

I am now being told by my supervisor that it was against their human rights and have been told to get rid of the evidence and im going to be probably reprimanded for it.

If their 'Human Rights' have been breached, then they can sue, can't they? The film will then be open to public scrutiny.

If the person concerned broke the law in any way, then the supervisor could be in trouble for trying to conceal it. You might point this out to him/her.

As to being reprimanded, fine. You will then file an appeal and the contents of the film will again be open to scrutiny.

[bluebottle]

Re: filming of work colleague against their human rights?

As regards human rights, when you did the filming, were you carrying out a public function, that is, on behalf of a government agency or department, or local authority, or as a law enforcement professional, e.g. police officer? If not, the Human Rights Act 1998 and the European Convention on Human Rights does not apply. However, what you did may well fall under the scope of the Data Protection Act 1998, which covers filming, especially if it is of a covert nature. As such, your employer is vicariously-liable for your actions during the course of your employment, that is, whilst you are at work. If you took it upon yourself to film your colleague, was your employer aware, beforehand, of your intentions? Finally, what is it that your colleague has done that amounts to gross misconduct?

[benn25]

Re: filming of work colleague against their human rights?

As regards human rights, when you did the filming, were you carrying out a public function, that is, on behalf of a government agency or department, or local authority, or as a law enforcement professional, e.g. police officer? If not, the Human Rights Act 1998 and the European Convention on Human Rights does not apply. However, what you did may well fall under the scope of the Data Protection Act 1998, which covers filming, especially if it is of a covert nature. As such, your employer is vicariously-liable for your actions during the course of your employment, that is, whilst you are at work. If you took it upon yourself to film your colleague, was your employer aware, beforehand, of your intentions? Finally, what is it that your colleague has done that amounts to gross misconduct?

Yes im management. Well the gross misconduct was sleeping on duty. We look after vulnerable adults. So its a serious issue. Yes I took it upon myself to film the person and no the employer was not aware. So where does that leave me?
This vicariously-liable business might be the reason why I was told to delete it immediately and all hell broke loose towards me - which of course I wasnt expecting. Thinking I was doing the right thing gaining hard evidence in the event others didnt come forward or the accused just blatantly denied it.

[bluebottle]

Re: filming of work colleague against their human rights?

Yes im management. Well the gross misconduct was sleeping on duty. We look after vulnerable adults. So its a serious issue. Yes I took it upon myself to film the person and no the employer was not aware. So where does that leave me?
This vicariously-liable business might be the reason why I was told to delete it immediately and all hell broke loose towards me - which of course I wasnt expecting. Thinking I was doing the right thing gaining hard evidence in the event others didnt come forward or the accused just blatantly denied it.

You've answered many of your own questions. The Information Commissioner's Office (ICO) has laid down guidelines for employers as regards covert filming of employees whilst they are at work. In a nutshell, they must be made aware that they are liable to be filmed. If they are not, then it may well amount to a breach of the Data Protection Act 1998 as well as a breach of trust and confidence.

In all probability, the issue of vicarious liability is the most likely reason you were asked to delete the footage. There is also the question of admissibility of evidence if the matter went before a disciplinary hearing, Employment Tribunal, Employment Appeals Tribunal or one of the regulatory bodies in the healthcare sector, namely, General Medical Council (GMC), Nursing & Midwifery Council (NMC) or Health Care Professionals Council (HCPC), or in a court of law, if it ever got that far.

I hate to say this, but what you did may, in itself, amount to gross misconduct and explain why all hell let loose towards you. If you get reprimanded, I would accept it and learn from the experience.

As for filming others, the law governing this is wide-ranging. It is lawful to film in a public place or in your own home and the land upon which it stands. Anyone coming onto your property is liable to be filmed and has no right of objection. The same applies to public places. However, in a workplace, consent would be required, unless the employer made employees aware, e.g. filming for security or safety purposes, or secured their agreement for a specific reason, e.g. in order to film a promotional or training video.

[Harmonica]

Re: filming of work colleague against their human rights?

May I ask why this might be a breach of the data protection act? Is it because the OP is a manager and as such is a representative of the employer?

Imagine it was the other way around and it was a member of staff who is not in a managerial/supervisory position carrying out the covert filming. Am I right in thinking that it would be unlikely to be a breach of the DTA as employees are not actually data handlers as such, unless of course handling data it is the specific nature of their job?

[bluebottle]

Re: filming of work colleague against their human rights?

May I ask why this might be a breach of the data protection act? Is it because the OP is a manager and as such is a representative of the employer?

Imagine it was the other way around and it was a member of staff who is not in a managerial/supervisory position carrying out the covert filming. Am I right in thinking that it would be unlikely to be a breach of the DTA as employees are not actually data handlers as such, unless of course handling data it is the specific nature of their job?

If the OP had made the employer aware that a member of staff was sleeping on the job and the employer said, "Okay. Get the evidence," I doubt this thread would exist as the OP would be acting under the direction and with the knowledge of the employer who would be the responsible party and accountable under the DPA. As stated above, the ICO has issued guidelines for employers which are freely available via their website or by post. The fact is, the OP did what they did without the knowledge or agreement of the employer and this is where the issue arises.

[Harmonica]

Re: filming of work colleague against their human rights?

But the ICO has no similar guidelines for non management employees. I am aware of a situation where a person has been told that they've breached the DPA for covertly filming her managers. She herself is not a manager and her job has nothing to do with data handling. She works in a kitchen and she has been bullied.

She has tried to report the problem but she has gotten nowhere. She did some covert filming and presented her employer with the evidence and now they're talking about the DPA. But they can't actually explain what part of the DPA she has breached given that she is not a data handler. I personally don't think she actually has breached the DPA and I think they're talking cobblers. Although she may be charged with gross misconduct which is another issue entirely.

[bluebottle]

Re: filming of work colleague against their human rights?

But the ICO has no similar guidelines for non management employees. I am aware of a situation where a person has been told that they've breached the DPA for covertly filming her managers. She herself is not a manager and her job has nothing to do with data handling. She works in a kitchen and she has been bullied.

She has tried to report the problem but she has gotten nowhere. She did some covert filming and presented her employer with the evidence and now they're talking about the DPA. But they can't actually explain what part of the DPA she has breached given that she is not a data handler. I personally don't think she actually has breached the DPA and I think they're talking cobblers. Although she may be charged with gross misconduct which is another issue entirely.

ICO Code attached.

[Harmonica]

Re: filming of work colleague against their human rights?

Where?

[bluebottle]

Re: filming of work colleague against their human rights?

Here.

[Harmonica]

Re: filming of work colleague against their human rights?

It is all related to people who are data controllers within organisations though. Individuals have no actual responsibilities to adhere to it unless data handling is part of their job.

[bluebottle]

Re: filming of work colleague against their human rights?

Right. Just downloaded this from ICO's website which is the most up-to-date available. Also, don't forget that the OP undertook the filming during the course of their employment, which has a bearing on the matter.

[Harmonica]

Re: filming of work colleague against their human rights?

Thanks for going to the trouble. I still think it's a non issue where it is an employee who has been doing the filming. Having skimmed over that PDF nothing stands out as being relevant to a member of staff who is not a manager and does not handle other people's data as part of their job.

[leclerc]

Re: filming of work colleague against their human rights?

Thanks for going to the trouble. I still think it's a non issue where it is an employee who has been doing the filming. Having skimmed over that PDF nothing stands out as being relevant to a member of staff who is not a manager and does not handle other people's data as part of their job.

Page 73 point 3.4

I'm afraid the OP does not fall under the category that is within those parameters