I own a retail shop and am concerned that one of my employees is stealing money from the till. I am considering installing secret video surveillance to identify the culprit, but am worried about the legalities of this. Is it legal for an employer to install secret video surveillance cameras in such circumstances?

The use of secret video surveillance by employers to detect theft and other incidents of misconduct is becoming more and more common. Employers must however comply with the information collection principles set out in the Privacy Act 1993. These include ensuring that the information is collected for a lawful purpose, ensuring that employees are made aware that information is being collected (unless the employer believes on reasonable grounds that compliance would prejudice the purposes of collection or is not reasonably practicable), and that the manner of collection is lawful and does not intrude unreasonably on the personal affairs of the employees concerned.

Employers who catch employees committing misconduct on video still have an obligation to treat the employee concerned fairly and reasonably, and must still carry out a proper investigation.

The Employment Tribunal has dealt with a number of personal grievance cases involving the use of secret video surveillance cameras, with mixed results. The cases where employees have been successful in claiming unjustified dismissal all involve procedural unfairness (ie: the failure by the employee to carry out a proper investigation), and not the use of secret video surveillance itself.

For example, in one case involving cash and stock discrepancies, the employer immediately took the video tape to the Police and dismissed the employee concerned. The Tribunal held that the employee's dismissal was unjustified because the employer had failed to carry out a full and fair investigation of its own.

Employers also need to study the video tape carefully and be careful not to jump to conclusions about what they see. As an example, I once represented a group of Samoan cleaners who were suspended from work after being allegedly caught on camera making meals in the dead of night in the employer's cafeteria. The video showed cleaners helping themselves to bread, ham and other food out of the employer's fridge and looked quite damning.

At the end of the video, the employer asked the cleaners, "well, what have you got to say for yourselves?. One of the cleaners then stood up and said to the embarrassment of the employer, "that's not us, it's the Raratongan shift". The employer had accused and suspended the completely wrong shift.