Video surveillance in the workplace

Monitoring employees:
video surveillance in the workplace

Video surveillance is used in many bars, restaurants and shops, often as a measure to prevent theft or vandalism. However, it is often forgotten that staff are also filmed, which raises data protection concerns.

Legal framework
Prerequisites for video surveillance in the workplace
Video surveillance in the case of criminal offences or suspected criminal offences
Rights of the persons whose data is processed (the data subjects)
Specific examples

Increasing use
of video surveillance

Experience shows that using video surveillance equipment, in particular the increasingly widespread use of webcams, makes workers feel uneasy. These devices can affect employees’ well-being and mental health and, consequently, their ability to work. It is therefore in the interest of those concerned to use video surveillance equipment only if less drastic measures do not achieve the desired goal.

Links to FDPIC recommendations and legal precedent

Useful links on the subject of video surveillance in the workplace

Legal framework

The use of surveillance systems to monitor employee behaviour is prohibited. If it is necessary to use a monitoring or control system for any other reason (e.g. to monitor performance, production or safety control), it should be done in such a way that it does not affect employees’ health or their freedom to move around normally without being under constant surveillance.

When installing a video surveillance system in a company, Article 31 of the Federal Data Protection Act (FADP) must be taken into account, which states that a breach of personality rights is unlawful unless it is justified by the consent of the data subject, by an overriding private or public interest, or by law. Similarly, the principles of proportionality, good faith and transparency must be respected (Art. 6 FADP).

It should be noted that in employment relationships the validity of consent is limited, as an employee’s freedom of decide is restricted by their being in a subordinate relationship to their employer. In addition, employees must be informed before video surveillance is put into operation (duty to provide information arising from the principle of transparency). Employees should also be aware that they can exercise their right to information at any time in accordance with Article 25 FADP. The employer may process data concerning the employee only to the extent that such data concern the employee’s suitability for the job or are necessary for the performance of the employment contract (Art. 328b of the Swiss Code of Obligations, CO).

The employer is obliged to have due regard for the employee's health and safeguard the employee’s personality rights (Art. 328 CO). The use of video surveillance systems for the targeted monitoring of employee behaviour is prohibited (Art. 26 para. 1 of the Ordinance to the Employment Act, EmpO 3), as this would constitute a breach of the employee's personality rights. An employee's health may also be at risk when surveillance is permanent, creating a situation of continuous pressure. Furthermore, undeclared (covert) monitoring of workers violates the principle of good faith (Art. 6 para. 2 FADP). If video surveillance is necessary for other reasons, it should be organised in a way that does not interfere with employees’ health or their freedom to move around normally without being under constant surveillance.

Prerequisites for video surveillance in the workplace

In principle, video-surveillance systems may only be used in the workplace when less invasive measures are unsuitable for the company's monitoring purposes. Video-surveillance may be justified for organisational, security or production management purposes. Workers should not be filmed, except in exceptional cases, as this may affect their health. Surveillance cameras may be installed outside buildings and in car parks, in access roads and lobbies, in corridors or hallways, near dangerous machines and installations, in vaults, near outdoor gas storage tanks, in warehouses holding dangerous or valuable goods, or at bank counters. If public places are involved, it must be clarified in advance with the commune whether permission is required. Monitored areas must be clearly signposted.

Occasional video surveillance of employees for training purposes may be permitted. This is compatible with the protection of privacy provided employees are informed of the moments when they are being filmed. The recording period should be as short as possible and should not be used to monitor employee behaviour.

Recordings should only be retained for a limited period. The length of time the data is kept depends on the purpose of the monitoring. As a general rule, recordings should be deleted within 24 to 72 hours.

If video surveillance is absolutely necessary, we recommend the use of privacy-friendly technologies such as pixelating filters. These filters blur the faces of the people filmed in real time, thus guaranteeing privacy. However, even when using pixelating filters, video surveillance must be justified (Art. 31 FADP).

Video surveillance in the case of criminal offences or suspected criminal offences

Surveillance of an employee is permitted to deal with criminal offences or suspected criminal offence, provided it is ordered by a court or in the context of a criminal investigation following a report against an unknown person. The exercise of the right to information in the context of ongoing proceedings is then governed not by the FADP, but by the rules of procedure (Swiss Criminal Procedure Code, CrimPC). Video surveillance can also be used if there is reasonable suspicion of a criminal offence. It is up to the court to decide whether the video recordings can be used as evidence.

Rights of the persons whose data is processed (the data subjects)

Employees who feel that their privacy has been violated can bring a civil action against their employer under Article 32 FADP and based on Articles 28, 28a and 28g to l of the Civil Code (CC). They may demand that the processing of the data and their disclosure to third parties be prohibited and that the data be corrected, deleted or destroyed (Art. 32, paras. 2-4 FADP). Everyone has the right to ask whether data concerning them is being processed and in what form (Right to information, Art. 25 FADP).

A criminal complaint may also be made. In the event of a violation of Article 26 of Employment Ordinance 3, an employee may contact the cantonal labour inspectorate if they believe that their health is endangered by video surveillance in their workplace.

Specific examples

Video surveillance on construction sites

Nowadays, video surveillance is increasingly used on construction sites both to prevent theft and to save costs by monitoring the progress of work. The purpose of video surveillance is often not explained to those working on the site.
Night-time surveillance by video camera is in principle justified, since at night, the system is used for security reasons (prevention of theft and vandalism) and in the absence of workers. The system can be activated by motion detectors. It must not be operated remotely (e.g. via an app) during the day.

The use of video surveillance during the day is problematic. Its use to monitor the progress of work must in principle be prohibited, since the systematic monitoring of workers is contrary to the principle of proportionality (Art. 6 para. 2 FADP). This is because a surveillance system may be perceived by workers as a means of monitoring their behaviour. Even when informed, an employee may feel continuously observed, especially since cameras are often equipped with zoom functions that allow identification of individuals and could therefore be misused to carry out behavioural surveillance.

Video recording should not be used intrusively. Video surveillance on building sites for the purpose of monitoring the progress of work may, for example, be permitted (subject to weighing up the competing interests on a case-by-case basis) where daily inspections are required but difficult to carry out (if the architect and client have to travel a long distance to the site). However, informing the data subjects and ensuring that access to the recordings is regulated restrictively are prerequisites.

Video surveillance of shop employees

Video surveillance of employees in the retail sector violates their privacy, often without their knowledge. The situation should be examined on a case-by-case basis, depending on the type of activity and the scope of the employees' activities, as well as the size of the establishment (e.g. supervision only for cashier activities or also for shelf-stocking).

It is permitted to monitor an employee if it is known or suspected that a criminal offence has been committed (surveillance to prevent theft) if this measure is ordered by a court. In general, the FDPIC recommends that the detection of criminal offences and the video surveillance that it requires should be left to the police authorities where possible.

The use of a video camera directed at a checkout workers and their workplaces (conveyor belt, alcohol and cigarettes) is not recommended, even with pixelating filters, as it may constitute permanent surveillance of the data subject. Where the stated purpose of video surveillance is to prevent theft of expensive items, less intrusive measures should be considered, e.g. locking up liquor and cigarette racks.

If part of a shop must be put under video surveillance, access to the recordings should be limited and should be password protected. The positioning and settings of the cameras should be discussed with the staff so that everyone knows which part of the shop is not being monitored. In such a case, pixelating filters should be used. Video cameras used for security purposes at bank counters should also be positioned in such a way that the presence of employees in the field of view of a camera is exceptional (whereas the video surveillance of customers and other third parties is permitted).