- While a monitoring policy may be considered convenient to service the employer's interests, it must be clear that the employer's interest cannot justify an intrusion on an employee's privacy.
- Setting traps and ambushes is very much frowned upon by the EAT and the Data Protection Commissioner and it is deemed preferable to notify the employees of any potential issues that are arising and allowing them to correct their conduct accordingly.
- Employees must be made aware of any evidence being used against them at a disciplinary hearing.
Introduction
As employees spend more time at work and technology improves, there may be a conflict between an employee’s right to privacy during their working time and an employer’s right to monitor employee activities in order to protect the business. Employers have a plethora of tools which may be used to covertly survey employee work habits such as hidden cameras, phone tracking devices and on occasion it has even been the case that employers have sought out the services of private investigators to covertly monitor employee behaviour.
Tracking Systems
Increasingly, employers are making installing tracking systems in their vans and company vehicles. The benefits of these systems are obvious in terms of vehicle security and also for improved customer service as an employer will be able to service their customers based on the proximity of their vehicles. However, guidance and case law has found that employers can come into difficulty at employment tribunals if they use these systems for monitoring their employees’ behaviour.
Data Protection and Covert Surveillance
The Data Protection Acts 1988-2003 govern covert surveillance and its implementation in the Irish workplace. In this respect the legislation seeks to enforce and protect the employee’s right to privacy which is recognised as falling under Article. 40.3 of the Irish Constitution through setting rules and regulations around the collection and processing of ‘personal data’. The Acts define personal data as ‘data relating to a living individual who can be identified either from the data or from the data in conjunction with other information in the possession of the data controller.’ The Data Protection Commissioner has stated that “The use of vehicle tracking systems involves the collection of personal data as they record the location of the individual in charge of a vehicle at any particular time. An organisation using or considering using such a tracking system must be able to demonstrate that there is a good business reason for such surveillance. The individuals affected must be informed of the surveillance and its purposes. If personal (non-work-related) use of a vehicle is permitted, it should be possible to disable or mask the tracking system outside of working hours.”
The Employment Appeals Tribunal (EAT) decision of Foran -v- Galen Ltd. (UD 1894/2010) tackled the thorny issue of covert surveillance through vehicle tracking devices and its fairness and admissibility in internal disciplinary hearings. The case is well worth a review against the back-drop of the Data Protection Acts and its guidance on what is expected of employers when it comes to covert surveillance.
Foran -v- Galen Ltd. (UD 1894/2010)
The respondent company invested sizeable resources into its products but were subsequently disappointed with the commercial return on this marketing campaign. As a result the company decided to conduct a covert surveillance operation on its entire sales team through a vehicle tracking system. This was done secretly as otherwise the employees would only change their misconduct behaviour if they became aware of the tracker’s existence. The tracking device was placed in the claimant’s car and the results outlined a number of discrepancies and on this basis the claimant was invited to attend a disciplinary meeting.
Disciplinary Hearing
The company in the disciplinary invite letter gave a summary of the evidence against the claimant, and also enclosed a copy of its disciplinary policy and procedures and identified that the alleged behaviour could amount to gross misconduct. Importantly, the claimant’s colleagues were also being subjected to disciplinary action on similar issues. The claimant was aware of his right to bring a representative. Further details of the allegations against the claimant were outlined in the hearing but he was not provided with the evidence which supported these allegations. Following this disciplinary hearing, the company dismissed the claimant on the basis that his conduct amounted to fraud and a breach of contract.
The claimant did not appeal the decision to dismiss him as he felt that there was no point in doing so. He did acknowledge that the expense forms in question that he had submitted contained false information but that this was just ‘sloppy’ work on foot of the fact that maintaining paper records ‘did his head in.’
EAT - Covert Surveillance
One important issue which was raised by the EAT was that the employer decided to covertly monitor the employees in order to see if they were engaging in a particular type of misconduct. The EAT have long questioned and criticised such methods and in the case of Heffernan -v- Dunnes Stores (UD1355/2009) the EAT noted that it would be far more reasonable of an employer to notify employees of the concerns so that they correct their behaviour rather thasn covertly monitoring so that they can be caught out.
EAT Decision
In the Foran case the EAT noted that all individuals have a right to fair procedures and natural justice and this includes employees who are faced with disciplinary action from their employers. In this case the EAT determined that the employer had not complied with the principle of fair procedures as it had “neglected to inform its staff of its covert monitoring policy and opted not to tell the claimant that such an operation was being applied to him. This could be regarded as a breach of trust on behalf on the respondent. Furthermore the company did not provide the claimant with all the full gathered information used against him… Setting traps and ambushes for an employee is inappropriate behaviour for an employer.” The EAT also determined that the employee’s false entries were not excessively so and they preferred the notion that it was sloppy work as opposed to a deliberate intention to deceive the company. It was also strongly noted that the failure to provide all evidence to the employee for the disciplinary hearing was unfair. For these reasons the EAT found the dismissal to be unfair and awarded the employee €40,000.
Conclusion
So what can be learned from the Foran case and from the additional information supplied above:
