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The use of images captured by the video surveillance system for the disciplinary investigation of employees

Mihaela Cracea

Updated: Jul 13, 2024

The fourth article in the series dedicated to the practical aspects of labor law and data protection explores a question frequently asked by employers: is it permissible to use video footage captured by the surveillance system in disciplinary investigations involving employees, and subsequently, present it as evidence in legal proceedings?


Let's break down the topic into two easy-to-understand parts:

a) Examining procedural legal rules.

b) Understanding personal data processing laws.


Procedural legal rules


The provisions of the Labor Code that regulate labour disputes do not prohibit the use of video recordings in the disciplinary investigation. They rather contain general references to the concept of "evidence", without necessarily indicating the nature of admissible evidence in labour disputes.


However, art. 275 of the Labour Code[1], part of the chapter that regulates certain special rules of the procedure applicable to labour conflicts, expressly establishes that the rules of the Labor Code are complemented by the legal provisions established by the Civil Procedure Code.


The Civil Procedure Code allows the use of various forms of evidence, including what is termed "material evidence," such as photographs, films, discs, audio tapes, and other technological mediums, in civil conflicts such as labour disputes, on the condition that they were acquired lawfully and ethically.


Hence, since the special legislation in the field of labour relations does not prohibit, and according to the Civil Procedure Code, video recordings are material evidence, we may conclude that, from a procedural point of view, there is no obstacle in using video recordings as evidence in the course of a disciplinary investigation and/or labour dispute in order to prove a disciplinary offence[2].


However, the absence of a procedural ban in using video recordings as evidence, is not a sufficient condition for their practical use.


Hence, it is crucial to ascertain the legality of capturing captured images intended for use as evidence in disciplinary proceedings or labour disputes, by referencing the original purpose of their collection and its legitimacy.


Personal data processing


The legitimacy of video recordings usage, captured in the employer’s premises, to prove disciplinary offenses must be seen in close connection with the primary purpose of capturing that recording.


Video surveillance can serve several legitimate purposes, such as, for example, ensuring the protection of property and other assets, ensuring the protection of life and physical integrity of individuals[3].


Therefore, if the video monitoring took place for the purpose of protecting assets, persons, premises and the act of an employee is closely related to the violation of internal rules prohibiting stealing of assets, destruction of assets or acts of violence, then we may consider that the use of those recordings the purpose of which was of monitoring such events, could be used as evidence to prove a disciplinary offense consisting of: physically assaulting a colleague, stealing an asset from the employer's assets and leaving the workplace in the possession of such assets.


On the contrary, the use of the same records to prove disciplinary violations that are not closely related to the purpose of monitoring and that do not meet the level of reasonable expectation on the part of employees (e.g. to prove that an employee is late at work or to prove the work performance of employees) might be considered[4] a disproportionate measure in relation to the rights and freedoms of employees since those disciplinary offences can be proven by using less intrusive means, such as the use of information captured by the attendance card systems or, respectively performing employees’ appraisal according to the provisions of the employer’s Internal Regulation.


Caution!

In different circumstances, the same disciplinary offence may fall within the purpose pursued by the employer when collecting personal data by video surveillance system.

Ex. 1:

§  The purpose of video monitoring: ensuring the safety of workers at the workplace

§  Disciplinarily investigated act: smoking close to inflammable equipment.

or may exceed it


Ex. 2:

§  The purpose of video monitoring: ensuring the safety of workers at the workplace

§  Disciplinarily investigated act: taking too frequent smoking breaks.


By reference to Art. 22 of the GDPR which provides the right of data subjects not to be subject to decisions based solely on automated processing which significantly affects them, obtaining the employees’ point of view on the images used during the disciplinary investigations is necessary.


Also, the identification and use, if possible, of additional evidence is always welcome.


To conclude, in order to prevent issues related to the legitimacy of such records that could be used in a disciplinary investigation procedure, from the perspective of data privacy provisions, a careful analysis of each fact is recommendable since, as mentioned above, the same fact/offence may or may not, depending on the circumstances, fall under the legitimate interest pursued by the employer through video monitoring of the areas.


[1] Art. 275: "The provisions of this title are supplemented by the provisions of the Code of Civil Procedure".

[2] Art. 341 para. 2 of the Civil Procedure Code: "Photos, photocopies, films, discs, sound recording tapes, as well as other such technical means, are also material means of evidence, if they were not obtained by violating the law or good manners."

[3] Guide 3/2019 regarding the processing of personal data through video devices  issued by the EDPB.

[4] Opinion no. 4/2004 of the former Working Group art. 29: images collected solely to protect property and/or detect, prevent and control serious misconduct shall not be used to charge an employee with minor disciplinary misconduct.

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