Use of CCTV footage in disciplinary process breached data rights

A hospice employee has won a High Court appeal over the use of information from CCTV footage in a disciplinary investigation into the taking of unauthorised breaks and staff room graffiti saying ‘Kill all whites, ISIS is my life’.

Cormac Doolin, a craftsman’s mate at Our Lady’s Hospice and Care Service in Harold’s Cross, Dublin, appealed the Circuit Court’s ruling that his data rights were not breached as a result of the footage being used in the investigation.

Ms Justice Niamh Hyland on Friday allowed his appeal saying there was no evidence for the Circuit Court conclusion that the CCTV footage, or material derived from it for the disciplinary hearing, was for security purposes.

She also found the Data Protection Commissioner, against whom Mr Doolin brought the original appeal over the use of the information, made an error in holding that no further processing of the CCTV data took place.

The judge said the commissioner’s conclusion was founded on an incorrect interpretation of “processing” under the terms of the Data Protection Act 1988. The judge did not accept the commissioner’s claim that such a finding would be draconian and seriously hamper investigations of this type.

She said a sign beside the CCTV camera at the time of the graffiti incident in November 2015 stated that “images are recorded for the purposes of health and safety and crime prevention”.

Amended

By August 2016, the hospice had amended this policy to state the system was to prevent crime and promote staff security and public safety.

“If, in the event of viewing CCTV for the specified purpose, a disciplinary action is observed, the CCTV can be used for the purpose of a disciplinary investigation,” it stated. “However, CCTV will not be viewed solely for the purpose of monitoring staff.”

Ms Justice Hyland said if the new policy was in operation at the time of the graffiti incident “none of the above difficulties would have arisen”.

Mr Doolin, of Leighlin Road, Crumlin, Dublin, became subject of a disciplinary investigation in November 2015 into “an offensive graffiti message” carved into a table in the staff room and the taking of unauthorised breaks.

At an investigation meeting on December 1st, 2015, Mr Doolin said “if work got on top of us, we would take a break” and go to the staff room. He accepted that he should have said he was taking a break to his manager and declined to watch the CCTV at that time.

Complaint

He later made a complaint to the commissioner about data retrieved from the CCTV footage being used in an incorrect/unfair manner that led to an illegal sanction against him. The hospice argued there was a legitimate justification to access and view the footage.

Mr Justice Hyland said there was a “surprising shift” by the commissioner during the life of the proceedings from asserting initially there was no further processing of the footage “to asserting in these proceedings (there was) no breach because any further processing was done for the purpose for which the material was collected i.e. security”.

The idea that the information from the CCTV in the context of disciplinary proceedings was for security rather than disciplinary purposes “does not find a basis in any of the material before me”.

“There is simply no evidence at all to this effect”, she said.

The judge adjourned the matter to next week to allow the parties to consider her judgment and to argue whether it should be sent back to the commissioner for further consideration.