The Rochdale by-election made the news recently, with the Labour Party withdrawing support for candidate Azhar Ali following comments that he is said to have made about Israel and Jewish people following a recording of specific comments allegedly being made by Mr Ali. 

In my work supporting and advising providers in the social care sector, the issue of the legality and fairness of using recordings and/or photo evidence (made or taken without the individual’s consent) as part of an investigation and for tribunal proceedings is a contentious one. 

Photographic evidence – what are the risks?

Workers falling asleep whilst on duty has all manner of very serious implications, not least concerning a provider’s duty to operate a safe and effective level of care. But does that justify an employer using photographic evidence from a coworker to support any internal investigation, and/or any external report sent to the regulator or local authority? Here are some factors to consider. 

• An employer only needs a genuine belief in the wrongdoing – is the photo necessary to demonstrate genuine belief or could other corroborating evidence meet that requirement? 
• Where it is one employee’s word against another then a photo might be justified to present a genuine belief.
• If photos are used when serious aspects of health and safety are at risk, what steps should you take to ensure that employees understand that taking colleagues’ photographs without their consent unless there is a genuine concern for health and safety, is not acceptable behaviour?

Other concerns

Within a highly regulated sector such as social care, there are also regulatory concerns to consider. Providers are required to refer to the CQC when any incidents fall short of the fundamental standards imposed by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (to ensure that those who use the services are treated with dignity and respect and are not put at any harm and that staff are suitably qualified, competent, and experienced).   

Such a referral may justify photographic evidence in support given the seriousness of the incident and its impact on a care worker’s future in the sector. Similarly, there may be circumstances where referrals to the DBS will need to be made where conduct occurs that endangers or is likely to endanger a vulnerable adult. Given the seriousness of such allegations and the impact they could have on the employee’s life, photographic evidence, even taken without consent, might be needed to substantiate such a referral. Data protection is also an important consideration - if someone can be recognised from a photo, then it is personal data and so there must be a lawful basis to process it. An employer will need to decide whether using it for an investigation is a lawful basis. 

Alongside the data protection issue sits the thorny question of human rights. Does someone taking your photo breach your right to privacy if they did so while you were asleep and without your consent? It is certainly an argument to be considered although a Spanish case held that there was a lower expectation of privacy whilst at work, especially when they were doing something in a public place and that act was unlawful. 

Take away points

• Avoid jumping to conclusions about those who fall asleep on duty. There could be health or disability-related issues causing them to have fallen asleep, or even personal circumstances which you as their employer are not aware of, so careful thought and consideration needs to be given in all these kinds of cases.
• Avoid creating a vigilante culture amongst your workers where they are encouraged to spy on each other and routinely make video recordings or take photos as evidence. This is not helpful in providing a workplace of mutual trust and respect. 
• Ensure that you carry out any investigations into allegations such as sleeping whilst at work comprehensively and reasonably and are mindful of any obligation to report to either your regulator or the DBS. We can offer day training in how to carry out investigations which are comprehensive, timely and make evidence-based recommendations.
• Do seek specific advice from our data protection team if you have any concerns about processing or using any personal data such as recordings or photos and do check CQC guidance on their website regarding the use of surveillance technology in care services. 

Please contact me for further advice on this or information on investigation training. If you would like advice on issues relating to data protection, contact Emma Watt. For regulatory matters, contact Tim Coolican.