We have a concern that one of our employees on long term sick leave is working outside of the Company while supposedly too ill to return to work for us. We are therefore considering hiring a Private Investigator to gather evidence to substantiate our concerns. Can we then use this evidence to discipline, and potentially dismiss the employee, for this activity? How do I handle it?

Jennifer Cashman writes:

Like you, many employers retain the services of Private Investigators to gather information on their employees, particularly where they have a concern like this about the employee’s conduct in or out of the workplace. While evidence gathered by a Private Investigator can be extremely useful for an employer, very considerable thought must be given to how the evidence will be used to ensure the employer operates within the confines of the law. Failure to do so may result in the employer not being allowed to rely on the evidence in any proceedings brought by the employee, for example unfair dismissal proceedings. This would effectively mean the employer has wasted money on retaining the Private Investigator in the first place. The following are the legal considerations for an employer when planning to retain a Private Investigator.


Legal Consideration 1

Firstly, from a data protection perspective, is the retention of a Private Investigator the only way of gathering the necessary information?

The Data Protection Commissioner has given a very clear message that reliance by an employer on information gathered by a Private Investigator may be in breach of the employer’s obligations under the Data Protection legislation. If the employer is found to be in breach, the Data Protection Commissioner can order destruction of the evidence gathered by the Private Investigator, meaning that the employer could not rely on it in any subsequent proceedings taken by the employee. This would mean the employer would find it very difficult to defend any such proceedings as the crucial evidence could not be relied upon in its own defence. By way of illustration, the Data Protection Commissioner’s annual report for 2009, released on the 8th April 2010, contains a case study involving covert surveillance by an employer using a Private Investigator. The following is the case summary.

In October 2008, the Data Protection Commissioner received a complaint from an individual concerning the processing, without his knowledge or consent, of both his and his children’s personal data by his employer. The complaint involved the obtaining and processing of his personal data and that of his children by way of a Private Investigator producing footage of his movements and his children’s movements on a DVD for the company without his knowledge or consent. The employee made a complaint to the Data Protection Commissioner, who commenced an investigation into the matter by writing to the company.

The company in response set out the circumstances which led to it hiring a Private Investigator to check on the employee’s activities. In this regard, the complainant was employed as a Sales Representative and, as such, spent virtually all of his time away from the company’s premises. The company became concerned that the employee was not carrying out his duties as required by his contract of employment and decided it was necessary to check on his activities in his sales territory. A Private Investigator was engaged to check out the employee’s activities in order to establish whether or not he was performing his duties. The Private Investigator recorded the movements of the employee for a period of approximately one week and produced a DVD of these movements which he provided to the company. Some of his recordings produced on the DVD also contained images of the employee’s children.

The Data Protection Commissioner was concerned about the justification for the processing of the employee’s personal data by way of the Private Investigator recording his movements. The company was asked to review any documentation it had which it believed may suggest that the processing of the employee’s personal data was justified. The company sent a range of documents to the Data Protection Commissioner in that regard and, in response to the Data Protection Commissioner’s question as to whether or not it had taken any steps to address the concerns it had about the employee’s activities prior to the hiring of the Private Investigator, the employer stated that it believed there were no other steps it could have taken. The employer was of the view that it needed to make observations of the employee’s company car over a period of at least a week before it could be satisfied that the employee had a case to answer. The company stated that it did not have the resources internally to check this over such a period of time and for that reason the Private Investigator was asked to check and report.

Having considered the case put forward by the company and the documentation submitted, the Data Protection Commissioner considered that the processing of the employee’s personal data by way of a Private Investigator recording the employee’s movements was not justified as it had not taken appropriate steps to highlight its concerns to the employee prior to making the decision to hire a Private Investigator to record his movements. The Data Protection Commissioner also requested that the DVD in question be destroyed.

The Data Protection Commissioner found that the company had contravened the Data Protection Acts by the processing of the employee’s personal data and that of his children without his knowledge or consent.

The Data Protection Commissioner went on to state that covert surveillance of individuals is very difficult to reconcile under the Data Protection Acts and, as a minimum (and this may not even make such surveillance legal) there must be strong and evidence based justification for such surveillance in the first instance.

In other words, the Data Protection Commissioner almost suggests that surveillance should be a last resort measure. If surveillance is necessary, and if an employer decides to dismiss an employee, the employer should not rely solely or uncritically on a Private Investigator’s report and the decision must take account of all of the circumstances including, but not confined to, the Investigator’s report.


Legal Consideration 2

The second legal consideration which you must take into account is the obligation on an employer to ensure that the principles of natural justice and fair procedures are followed.

In other words, the first time that the employee sees the evidence gathered by a Private Investigator should not be when the employee is appearing before the Employment Appeals Tribunal in an unfair dismissal claim. Where the employer is satisfied that there are no other means to compile the information on the employee other than hiring a Private Investigator, then all information compiled by that Private Investigator on which the employer intends to rely must be shown to the employee in the context of an investigation and disciplinary procedure in order that the employee has a full opportunity to comment on and respond to the information gathered by the Private Investigator.

Doing so may not prevent the employee from making a complaint to the Data Protection Commissioner. However, if the employer can satisfy the Data Protection Commissioner that the use of the Private Investigator was justified in the circumstances, then destruction of the information gathered by the Private Investigator may not be ordered by the Data Protection Commissioner, leaving the employer in a situation where the evidence can be relied upon in any proceedings brought by the employee for unfair dismissal.

In your specific situation, where the employee is on sick leave and suspected of working outside of the company, the employee should first be invited to a meeting and asked to comment on those concerns. If the employee flatly denies the allegation and the employer still has concerns, then a Private Investigator may be the only means of establishing the facts of the matter.

You should also check the terms of your Sick Pay Policy to see whether reference is made to employees working outside of the workplace while on sick leave in order that you can determine the appropriate policy under which disciplinary action should be taken. The employee’s contract of employment may also contain a prohibition on working outside of the company while on sick leave, which would also be of assistance in any disciplinary proceedings that are necessary."