Q&A  

Staff photographs in the age of consent

Staff photographs in the age of consent

Q: Can I insist on staff having their photo taken for a new human resources system we are using? 

A: From an employer’s perspective it may seem perfectly harmless to use an employee’s photograph on an internal HR system.

However, this could be a sticking point for certain individuals, and when confronted with a situation such as this you should avoid proceeding without first giving consideration to the risks regarding data protection.

An employee’s photograph would be considered personal data under the General Data Protection Regulation and employers have an obligation to process personal data fairly and lawfully.

Therefore you should refrain from collecting or using an employee’s photograph for any purpose, including an internal HR system, without having a lawful basis on which to do so.

Continuing on regardless without a lawful basis would place you in breach of GDPR.

Under GDPR there are six recognised lawful bases for processing personal data, which are as follows: consent; performance of contract; legal obligation; vital interests; public task or legitimate interests.

At least one of these must apply in order to use staff photographs and it is likely that consent would be the most appropriate in this scenario. 

Whilst it is possible to obtain employee consent either in writing or in person, gaining consent correctly under GDPR attracts specific rules and employees must be clear on what their photo will be used for so that they can give informed consent.

It is also important that employees who do not give their consent suffer no detriment for their refusal.

Having said this, staff have the ability to take back their consent at any time.

As such, if an employee decides they no longer wish for their photo to be displayed on your internal HR system you must comply with this request, while also ensuring they suffer no detriment as a result. 

It should also be noted that Article 8 of the Human Rights Act 1998 states that individuals have the right to respect for their private life.

Therefore, proceeding to use an employee’s photograph without their consent would be in breach of this right and leave you open to various tribunal claims.

Ultimately, it is important to remember that it would be inappropriate to insist on using employees’ photographs without their consent. Therefore, if staff are unwilling to give consent you should take the time to address any concerns they have and be prepared to make adjustments accordingly.

Peter Done is managing director of law firm Peninsula