Mystery shopping

berrypendel

http://www.panresearch.ie/pages/services/video-and-audio.php

is this legal filming staff without their knowledge? data protection?

coylemj

You don't have an absolute right to privacy in the workplace, how else could a department store or even a small sweetshop have CCTV cameras? As for 'without their knowledge', all the employer has to do is include a clause in the terms of employment stating that the company has the right to film the employees in the work area at all times, problem solved.

By 'work area' I mean the area where the employee carries out their regular duties and would obviously exclude staff toilets, changing rooms etc.

BrianD

Generally, the best practice is that if mystery shopping is going to take place that the staff are made aware that it will happen. In some places it's part of performance reviews.

However, coylemj's approach would not pass muster with the DPC and would end up in hot water.

coylemj

BrianD wrote: »

However, coylemj's approach would not pass muster with the DPC and would end up in hot water.

So all of the CCTV cameras in stores and fillling stations around the country are illegal?

Financial institutions such as stockbrokers and insurance companies record all of their phone calls 'for tracking and training purposes' - are those recordings illegal?

Supervisors in call centres often listen in on phone calls to monitor how employees are performing, is that illegal?

I'd suggest that in neither case is it illegal because the staff are made aware in advance (acceptance of which is a condition of their employment) that it will or might happen.

ResearchWill

coylemj wrote: »

So all of the CCTV cameras in stores and fillling stations around the country are illegal?

Financial institutions such as stockbrokers and insurance companies record all of their phone calls 'for tracking and training purposes' - are those recordings illegal?

Supervisors in call centres often listen in on phone calls to monitor how employees are performaing, is that illegal?

The problem with any data is when it is used not for the intended purpose. Example from the Data Protection Commissioners web site.

"In February 2008 I received complaints from two employees of the same company regarding their employer’s intention to use CCTV recordings for disciplinary purposes. 

In this case, the employer had used CCTV images to compile a log that recorded the employees’ pattern of entry and exit from their place of work.  The employer then notified a trade union representative that this log would be used at a disciplinary meeting.  It also supplied a copy of the log to the union representative.  The employer sent letters to each employee requesting that they attend a disciplinary meeting to discuss potential irregularities in their attendance.  The letters indicated that this was a very serious matter of potential gross misconduct and that it could result in disciplinary action, up to and including dismissal.

The employees immediately lodged complaints with my Office.  They stated that they had never been informed of the purpose of the CCTV cameras on the campus where they were employed.  They pointed out that there were no signs visible about the operation of CCTV.  On receipt of the complaints, my Office contacted the employer and we outlined the data protection implications of using CCTV footage without having an appropriate basis for doing so.  We informed the company that, to satisfy the fair obtaining principle of the Data Protection Acts with regard to the use of CCTV cameras, those people whose images are captured on camera must be informed about the identity of the data controller and the purpose(s) of processing the data.  This can be achieved by placing easily read signs in prominent positions.  A sign at all entrances will normally suffice.  If an employer intends to use cameras to identify disciplinary (or other) issues relating to staff, as in this instance, staff must be informed of this before the cameras are used for these purposes.
 
The employer accepted the views of my Office.  It informed the two employees that it was not in a position to pursue the matter of potential irregularities in attendance as it could not rely on CCTV evidence obtained in contravention of the Data Protection Acts.
 
This case demonstrates how data controllers are tempted to use personal information captured on CCTV systems for a whole range of purposes.  Many businesses have justifiable reasons, related to security, for the deployment of CCTV systems on their premises.  However, any further use of personal data captured in this way is unlawful under the Data Protection Acts unless the data controller has made it known at the time of recording that images captured may be used for those additional purposes.  Transparency and proportionality are the key points to be considered by any data controller before they install a CCTV system.  Proportionality is an important factor in this respect since the proposed use must be justifiable and reasonable if it is not to breach the Data Protection Acts.  Notification of all proposed uses will not be enough if such uses are not justifiable.

Substantial guidance is available on our website in relation to the use of CCTV in a business or in a workplace.  I would encourage all data controllers, particularly those who may already have such recording systems in place, to familiarise themselves with our guidance on this important issue."

So a blanket all CCTV or recording is ok or is not ok is not possible.

Guidance available here http://www.dataprotection.ie/viewdoc.asp?m=m&fn=/documents/guidance/cctv.htm

Using an example you gave, say a person is working for a company whos founder is a very religious person. Say the staff member is having an affair with a married person. Now during a break the staff member receives a call from the person he is having an affair with, who happens to also be the employers cousins friends wife. The call like all others is recorded. Is it legal to 1 use that call in any disciplinary hearing, and or is it legal for the employer to give the recording to his cousin. I would say no, even if the employer stated in contract that it was, as neither of those reasons to use the data is what the data was collected for.

coylemj

ResearchWill wrote: »

If an employer intends to use cameras to identify disciplinary (or other) issues relating to staff, as in this instance, staff must be informed of this before the cameras are used for these purposes.

ResearchWill wrote: »

However, any further use of personal data captured in this way is unlawful under the Data Protection Acts unless the data controller has made it known at the time of recording that images captured may be used for those additional purposes.

Clearly the employer was caught out by not telling the employees that the CCTV could be used for disciplinary purposes. If he had done so in advance he could have used the material.

Sounds like the trade union won a victory on a technicaility, I'll bet the employer has sorted that one out for the future.

ResearchWill

coylemj wrote: »

Clearly the employer was caught out by not telling the employees that the CCTV could be used for disciplinary purposes. If he had done so in advance he could have used the material.

Also in the case study, "Notification of all proposed uses will not be enough if such uses are not justifiable."

So it may not be enough to tell you are going to do it, any use must be justifiable. In the case that the OP posed, I think the employer would have to inform that the mystery shoppers are camera equipped, and what exactly the recordings can be used for.

coylemj

ResearchWill wrote: »

Also in the case study, "Notification of all proposed uses will not be enough if such uses are not justifiable."

But given that ths is a legal forum, if the employer has a CCTV movie of an employee pilfering, would that not in and of itself prove that such use (of the CCTV) camera was justifiable?

ResearchWill wrote: »

In the case that the OP posed, I think the employer would have to inform that the mystery shoppers are camera equipped, and what exactly the recordings can be used for.

If the mystery shopper was going to wear a hidden camera then yes, I agree.

ResearchWill

coylemj wrote: »

But given that ths is a legal forum, if the employer has a CCTV movie of an employee pilfering, would that not in and of itself prove that such use (of the CCTV) camera was justifiable?



If the mystery shopper was going to wear a hidden camera then yes, I agree.

Just so we are clear, have I said it can or cannot be used. No. I gave a copy of a case study and gave a link to guidelines. I then cleary stated that a blanket it's illegal or a blanket it's legal is not possible.

In relation to an employee stealing, if the employer has clearly stated that CCTV is there to monitor employes and to uncover stealing, then yes it can be used. If the employer hides the CCTV and does not disclose it then there may be a problem, again see I have not said it can't be used, I have said there may be a problem.

Again to quote from the case study "If an employer intends to use cameras to identify disciplinary (or other) issues relating to staff, as in this instance, staff must be informed of this before the cameras are used for these purposes."

BrianD

coylemj wrote: »

So all of the CCTV cameras in stores and fillling stations around the country are illegal?

Financial institutions such as stockbrokers and insurance companies record all of their phone calls 'for tracking and training purposes' - are those recordings illegal?

Supervisors in call centres often listen in on phone calls to monitor how employees are performing, is that illegal?

I'd suggest that in neither case is it illegal because the staff are made aware in advance (acceptance of which is a condition of their employment) that it will or might happen.

Massive difference.

Employees are informed in advance that conversations are recorded for training.

CCTV is installed for security or specified purposes and staff are generally advised of their presence. It's acceptable to have a camera above a till but not above a persons desk. Privacy is not exclusive from the work place. There are guidelines and extensive guidelines about what is acceptable or not.

Mystery shopping is not acceptable if employees are not told of it in advance. I don't see a problem with the use of video/audio once there are controls in how it will be used afterwards are in place.

Many moons ago I worked in a mystery shopping company that shopped many of the large high street stores. The description of the staff members that the shoppers had to give was very detailed ( a Garda would ask you less!) so there would be no confusion with who the staff member was. So there is extensive data already being collected with paper and pen. the problem with video is that it could potentially be leaked onto the web or even used at business conferences etc.

berrypendel

coylemj wrote: »

So all of the CCTV cameras in stores and fillling stations around the country are illegal?

Financial institutions such as stockbrokers and insurance companies record all of their phone calls 'for tracking and training purposes' - are those recordings illegal?

Supervisors in call centres often listen in on phone calls to monitor how employees are performing, is that illegal?

I'd suggest that in neither case is it illegal because the staff are made aware in advance (acceptance of which is a condition of their employment) that it will or might happen.

Thye have a sign or tell you they are going to it in the case of phone.

berrypendel

BrianD wrote: »

Many moons ago I worked in a mystery shopping company that shopped many of the large high street stores. The description of the staff members that the shoppers had to give was very detailed ( a Garda would ask you less!) so there would be no confusion with who the staff member was. So there is extensive data already being collected with paper and pen. the problem with video is that it could potentially be leaked onto the web or even used at business conferences etc.

Do you mean the staff inthe shop knew they were being mystery shopped?My understanding is they don't and any form are filled in after. My understanding of the cctv is that is hidden and they are not told when the shopper will arrive.

BrianD

berrypendel wrote: »

Do you mean the staff inthe shop knew they were being mystery shopped?My understanding is they don't and any form are filled in after. My understanding of the cctv is that is hidden and they are not told when the shopper will arrive.

Yes all staff knew that the company used mystery shoppers and that any customer was potentially one. They are obviously not told the time or date of arrival nor do these shoppers reveal who they are! In one mobile chain, the results of mystery shoppers were used for performance reviews.

The shoppers are the ones with the form. The will get a "mission" and the form is a series of questions as to what happened as they performed that mission. Questions like how before a staff member approach them after entry, did they smile, did they ask particular questions, correct uniform, name badge etc. The shopper has to describe the staff member in detail so there would be no confusion as to who they were served by. My point is that there is quite an amount of data collected as is.