Can an employer that wishes to verify the productivity of its employees, that notes damage to its property and would like to find out the cause or that wishes to ensure that safety measures are being correctly implemented install surveillance cameras on its premises? May it use the images thus obtained in order to fire an employee for just cause?
Yes, but…
In Belgium, the Act of 30 July 2018 implementing and transposing certain provisions of the GDPR stipulates rules with which the employer must comply when processing personal data: the principles of lawfulness [of collection], loyalty and transparency, the purpose limitation, the principles of data minimisation and accuracy, limits on data retention, the integrity and confidentiality of data as well as the accountability principle.
The employer is also obliged to comply with Collective Bargaining Agreement No 68 when deciding to install a video surveillance system in order to monitor, from a remote location, places or activities in the workplace, regardless of whether the images are viewed immediately or stored. The purpose of the CBA is to ensure respect for the privacy of employees and protect their dignity. The employer, which typically has management and supervisory powers, thus cannot act in an unfettered manner.
Video surveillance may be either permanent or temporary when the purpose pursued relates to health and safety, the protection of company property or supervision of the production process, in the latter case provided the surveillance relates to machinery only. On the other hand, video surveillance may only be temporary when the purpose is to supervise the production process and the surveillance relates to the employees or their work strictly speaking. This purpose may not result in the employer's decisions and assessments being based solely on the data collected by the surveillance cameras.
The employer must explicitly clarify the purpose of the video surveillance and comply with the principle of proportionality, i.e. the video surveillance must be adequate, pertinent and not excessive. Nor should it entail an invasion of the employee's privacy and, if this is the case, the invasion should be kept to a minimum.
Prior to and during the use of surveillance cameras, the employer must inform the works council of all aspects of the surveillance. In the absence of a works council, this information is provided to the health and safety committee or, if there is none, to the trade union delegation or, in the absence thereof, to the employees.
The works council or, in the absence thereof, the health and safety committee must moreover regularly assess the surveillance systems used and make proposals with a view to their revision based on technological developments.
In conclusion, an employer may install surveillance cameras at its premises, provided it complies with certain rules. However, it may never install cameras surreptitiously in order to try to catch an employee red-handed and subsequently fire him or her for just cause based solely on the recorded images. Indeed, a court faced with such evidence alone (thus without a written confession by the employee) will first check compliance with the rules relating to dismissal for just cause and the legality of the images.
Before installing surveillance cameras, the employer must thus notify the competent body of the purpose being pursued, whether the images will be kept or not, the number and locations of the cameras as well as the periods during which they will operate.
