The Retailer SUMMER 16_v7

risks and security

Theft prevention measures: an invasion of privacy or justified protection?

Esyllt Green Employment Law Associate Capital Law

DO THEFT PREVENTION MEASURES LIKE CCTV AND SEARCHES INVADE EMPLOYEE PRIVACY, OR DO THEY AFFORD JUSTIFIED PROTECTION FOR RETAILERS? Workers in the retail sector are very fortunate in some ways. Surrounded by shiny new goods that we all covet, who wouldn’t envy the customer adviser demonstrating a newly released gadget, or a beautifully soft leather handbag? However, whilst workers are free to enjoy being amongst these goods during working hours, for some employees, the temptation has proven too much. Retailers increasingly face a daily battle in dealing with the theft of goods by staff, and dishonesty allegations are all too common in an HR professional’s work load. To tackle this, retailers have long employed a variety of measures – some of which have been heavily publicised recently – but when does prevention start to infringe privacy? ASOS were recently condemned by unions for their theft prevention measures. Their decision to increase the number of CCTV cameras that monitor staff in their warehouse was heavily criticised as contributing to a ‘big brother’ culture, and infringing employee rights. Sports Direct owner Mike Ashley, too, had to justify his company’s searching procedures at its Derbyshire warehouse to MPs, after hugely negative media coverage of the practices in place.

However, the United Kingdom’s Human Rights Act of 1998 requires courts to interpret domestic law in accordance with the rights within the ECHR. This means that any actions that could be construed as infringing the right to a private life could bolster an employee’s claim under UK law. For example, in a constructive unfair dismissal claim based on allegations of breach of the implied duty of trust and confidence, any evidence an employee can rely on that suggests an infringement of Article 8 rights, could strengthen their prospects of success. fundamental principle of the law in the UK that a person’s body is inviolate. To engage in any kind of physical contact without the person’s express consent could constitute criminal offences of assault and battery. In an employment context, searching without consent would almost certainly be a breach of the implied duty of mutual trust and confidence. Commonly, the way around this is for employers to have express provision in the contract of employment or contractual part of a staff handbook that allows them to carry out searches; the employee will then be deemed to have given consent. If an employee refuses to be searched - even if they’ve signed a contract giving express permission - an employer should be aware that this could have the effect of deemed consent being withdrawn. In such circumstances, an employer could discipline the employee on the basis that their actions have amounted to a breach of contract or a refusal to carry out a reasonable instruction. The key principle to minimise issues arising out of a requirement to search is to have a clear written policy, explaining how and why searches are carried out, identifying who within the organisation can carry out searches and the consequences of failure to cooperate. CCTV monitoring Considering the use of CCTV, the principles surrounding the use of personal data (to include an image of a person) are set out in the Data Protection Act 1998. Whilst monitoring employees is not prohibited, the Information Commissioner’s Code of Conduct requires employers to consider the justification for monitoring and assess its benefits against the potential adverse impact on individuals. Searching With regards to searching an employee’s person, it is a This method is not legally foolproof, and employers should be wary of considering this as blanket protection.

Understandably, views on theft prevention measures differ widely between those subject to them, and those implementing them.

But, while employees may find CCTV or search procedures invasive, a study by the University of Leicester in 2006 considered the views of offenders and retailers, and found that CCTV and consistent staff searching procedures was a genuine deterrent to those tempted to steal.

It’s a difficult balance, but what is an employer legally entitled to do?

Employee right to privacy Firstly, it’s important to understand to what extent an employee’s privacy is protected in the workplace. The Article 8 right under the European Convention of Human Rights (ECHR) – the right to a private life – is not directly enforceable against a retail company.

34 | summer 2016 |

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