High Court finds use of CCTV evidence breached data rights in staff disciplinary investigation

Today, Ms Justice Niamh Hyland allowed his appeal saying there was no evidence for the Circuit Court conclusion that the CCTV footage, or material derived from it for the disciplinary hearing, was for security purposes.

She also found the Data Protection Commissioner, against whom Mr Doolin brought the original appeal over the use of the information, made an error of law in holding that no further processing of the CCTV data took place. The Commissioner's conclusion was founded on an incorrect interpretation of "processing" under the terms of the Data Protection Act 1988, she said.

The judge did not accept the Commissioner's claim that such a finding would be draconian and seriously hamper investigations of this type.

She said a sign beside the CCTV camera at the time of the graffiti incident in November 2015 said "images are recorded for the purposes of health and safety and crime prevention".

By August 2016, the hospice had amended this policy to state the system was to prevent crime and promote staff security and public safety.

It added: "If, in the event of viewing CCTV for the specified purpose, a disciplinary action is observed, the CCTV can be used for the purpose of a disciplinary investigation.

However, CCTV will not be viewed solely for the purpose of monitoring staff.

Ms Justice Hyland said if at the time of the graffiti incident that new policy was in operation "none of the above difficulties would have arisen."

Where purposes for the use of CCTV are clearly identified, and assuming all other permissible purposes under the law, then the use of such material is likely to be uncontroversial, she said.

She was therefore overturning the Circuit Court decision as there was no evidence for the conclusion that the disciplinary action against Mr Cummins, in which information from the CCTV footage was used, was carried out for security purposes.

Mr Doolin, of Leighlin Road, Crumlin, Dublin, became subject of a disciplinary investigation in November 2015 into "an offensive graffiti message" carved into a table in the staff room and the use of unauthorised breaks.

At an investigation meeting on December 1, Mr Doolin said "if work got on top of us, we would take a break" and go to the staff room. He accepted he should have said he was taking a break to his manager. He declined to watch the CCTV at that time.

Later he made a complaint to the Data Protection Commissioner that data retrieved from the CCTV was used in an incorrect/unfair manner that led to an illegal sanction against him.

The hospice argued there was a legitimate justification to access and view the footage.

The Commissioner found that while the information gathered from viewing the footage may have been used for a purpose other the the initial one of investigating a security incident, the use of them in disciplinary proceedings did "not constitute a different purpose".

Mr Justice Hyland said there was a "surprising shift" by the Commissioner during the life of the proceedings from asserting initially there was no further processing of the footage "to asserting in these proceedings (there was) no breach because any further processing was done for the purpose for which the material was collected, ie security".

The idea that the information from the CCTV in the context of disciplinary proceedings was for security purposes rather than disciplinary "does not find a basis in any of the material before me. There is simply no evidence at all to this effect", she said.

The judge adjourned the matter to next week to allow the parties to consider her judgment and to argue whether it should be sent back to the Commissioner for further consideration.