Closed circuit television (CCTV)
By Christina M. Eggspuehler
Walder Wyss & Partners Ltd.
Technical improvements of CCTV are fast-paced and open employers numerous possibilities to monitor employees such as by way of assessing patterns of behaviour respectively deviations thereof. Such technical advance increases the risk of an infringement of the personality of an employee. In order to avoid any civil and/or penal liability, if any, it is important to ensure full compliance with the provisions and principles of the Swiss Code of Obligations, the 3rd Decree of the Swiss Labour Act and the Federal Law on Data Protection.
CCTV shall not be used to monitor the employees’ behaviour and it must be ensured that that the health and free moving space of the employees is not affected thereby. Further, an employer may use data on the employee only as far as the qualification in relation to the employment is concerned or if the data is required with regard to the performance of the employment. Data collected for other reasons, however, needs to be justified according to the principle of lawfulness, i.e. the approval of the person concerned is required, the employer must demonstrate a preponderant private or public interest or there must be a specific statutory provision. Depending on the circumstances, the avoidance of burglary, the security of staff or the function control of machines may qualify as so called preponderant private interests entitling an employer to use CCTV.
According to the principle of proportionality, CCTV shall be appropriate and required in view of the envisaged purpose. CCTV may be used only if other measures with less impact are not sufficient or practical. As an example, the function control of machines could be made by an electronic monitoring system instead of using CCTV or a metal detector could be installed at the entrance of a jewellery store in order to avoid thievery. In addition, the employees shall not be permanently filmed and the faces of the employees shall not be covered by the cameras. Further, data collected shall be deleted within a short period of time as thievery or safety issues may be discovered immediately or within a few hours.
Pursuant to the principle of good faith, the employees shall be fully informed about the position of the cameras, the reasons of the use of CCTV or the period after which data will be deleted. In addition, the data shall be protected by adequate technical and organizational measures against any unauthorized handling (safety of data) and the data can be used with regard to the purpose as indicated to the employees only (principle of purpose limitation).
To implement CCTV, it is highly recommended to discuss its use with the competent cantonal Labour Inspectorate in advance in order to avoid any rebuilding after the cameras have already been installed.