We are a manufacturing company and are putting together a marketing brochure. We would like to use our employees as models, demonstrating the various production line activities. One of our employees has said that he is unwilling to have his photograph included. Is he entitled to object?
Yes, if the photograph could be said to be personal data and, in any event, under the Human Rights Act 1998 if the employee has not given consent to its publication. Under the Human Rights Act 1998 there is a right to respect for privacy (Article 8) and publishing a photograph without the employee’s consent could potentially be a breach of that right.
A photograph displayed in your brochure is likely to be “personal data” under the General Data Protection Regulations (GDPR). Certainly if the employee’s name appears alongside the photo, then it would amount to personal data.
Assuming the photograph to amount to personal data, then in order to process such data you would either need the employee’s consent or satisfy one of the other conditions for processing such data e.g. compliance with a legal obligation or you have a legitimate interest for processing the data. It is difficult to see what conditions other than consent could be relied on in this particular case. In some circumstances it might be possible to argue that it is in the ‘legitimate interests’ of your business to use an employee’s image even without their consent (for example on a contact list so customers know who to call). However, this is unlikely to apply here.
For consent to be relied on, it has to be freely given. Even if your employee changes his mind and does give consent, he can withdraw that consent at any time. Withdrawing consent may be more problematic than declining to give consent in the first place e.g. if at the time of withdrawal the brochures have all been printed. Therefore, if the employee is unwilling to have his photograph included, the safest course of action is not to use it, to avoid any issues further down the line.
It is important to also remember that if using the an employee’s photo in a brochure, assuming consent is obtained, you as the employer would need to comply with other aspects of the GDPR, for example, notifying the employee about the reasons for the processing of data.
One of my employees is being investigated for gross misconduct and has now filed a grievance of bullying by his manager. The employee admits to making covert recordings of conversations with his manager and has said he will use these as evidence to support his claims. The manager denies the allegations but says he can no longer work with the employee as he has lost trust in the relationship. What should we do now?
First of all you should ask for a copy of the recordings as part of your investigation into the employee’s grievance. You need to suspend the disciplinary process whilst the grievance process takes its course unless the two matters are directly linked in which case you can run the process concurrently.
Whilst the manager may feel affronted by the fact that conversations have been recorded without his knowledge, if the evidence supports the employee’s claims it will be difficult for the manager to complain about this. The recordings would be admissible in a tribunal hearing unless the quality of the recordings is too poor to be of any use. Of course if the employee declines to provide a copy then you will be in order to draw your own conclusions from this.
If you wish to discourage covert recording it should be made clear in your company rules or handbook or in a specific communications policy that the company does not give permission for recording to take place without explicit consent of the participants. You should ensure that the consequences of doing so are made clear.
Assuming the bullying allegations are not proven, the manager may have a case for not being able to trust the employee again and this may in itself be grounds for a fair dismissal on the basis of a breach of trust and confidence. However you need to take account of the employee’s reasons for making the recordings in the first place – had previous complaints been ignored or was it on advice to prepare for making a complaint? If the employee’s actions have a reasonable basis it may be unfair to dismiss purely because the manager is aggrieved.
If you do dismiss you should also be mindful that the employee may claim that he has been dismissed for “whistle-blowing” by making a complaint of bullying. Minimise this risk by ensuring that the dismissal is only due to the covert recordings and not because of the complaint itself, unless it was found to have been made in bad faith.