Trade unions recently raised concerns about workplace surveillance at Amazon warehouses, following the company’s announcement that they plan to open their first centre in Ireland next year, creating 500 jobs at the Baldonnell Business Park in Dublin. The union’s concerns were fuelled by a recent U.S. Federal Board recommendation about the use of surveillance cameras by the company near a union recognition polling booth at their Alabama warehouse. This follows a 2020 Reuters’ report on research findings that the company relies on ‘extensive’ surveillance to track employees and their output, via ‘navigation software, item scanners, wristbands, thermal cameras, security cameras and recorded footage’.

Of course, Amazon’s use of surveillance techniques is far from unique. For example, the EU’s agency EUROFOUND recently concluded that ‘new digital technologies have entered the workplace, immeasurably expanding the possibilities of employee monitoring and surveillance’. Advanced technologies offer employers considerable scope to monitor employee locations, habits and behaviour, via fingerprint and iris identification, hand, face and voice recognition and associated biological ID systems. It’s no surprise then that the Irish Congress of Trade Unions (ICTU) should recently lobby the Department of Employment to convey their concern at the trend toward ‘artificial intelligence’ (AI) and employers’ uses of these AI-type technologies. These uses (or abuses) include monitoring homeworking employees, by counting their hourly mouse clicks, keystrokes and emails, their time spent on social media websites and making periodic photographic ‘timecards’ via a webcam.

Remote Working and Surveillance ⚓︎

As employers in Ireland are being encouraged to persist with remote working arrangements - because of the Covid-19’s Delta variant prevalence – it is increasingly common for them to track staff remotely via various softwares. In fact, according to Top10VPN’s research, the use of employee surveillance software jumped 50% during the 2020 lockdowns and this application is on an upward trajectory. Notably, they also report that some of the software being sold allows managers to secretly spy on employees, including having the capacity to turn on remote cameras and microphones, as well as monitoring keystrokes. This increased use finding tallies with the work of market research firm Gartner, who report that the use of surveillance tools doubled during the pandemic and this trend looks set to persist.

WRC’s Judgements ⚓︎

Hence, it was inevitable that this subject would feature at Workplace Relations Commission (WRC) hearings sooner rather than later. For example, in October 2021 it was held that Apple Distribution ‘strayed outside the contractual terms on acceptable levels of surveillance’ when investigating the work practices of a customer relations advisor. In this case it was found that the employer’s actions constituted a breach of the term of trust and confidence implied in the contract of employment – giving rise to a successful claim of constructive dismissal. Though the WRC’s Adjudication Officer (AO) noted that the relevant ‘remote worker’ had agreed to a clause under which the company reserved the right to ‘monitor your calls, emails, chat, conversations and computer desktop, while working .. the company will exercise this right from time to time in its sole discretion’, she  concluded that Apple Distribution erred in its handling of the employee’s personal data and she was disappointed that the employer advanced to processing personal data ‘without pre clearance’ and ‘did not pay heed’ to the employee’s concerns about his lack of consent to the release of his personal data, thus demonstrating ‘a serious departure from the trust and confidence enshrined in the contract of employment’ (ADJ-00031101).

Earlier this year the same subject featured in a WRC judgement in respect of a claim brought by a college lecturer, that he was inappropriately withdrawn from an examination panel for refusing to be recorded at home (i.e. he argued that it was an infringement of his right to privacy). However, the AO adjudged the objection to participating in the recording of assessments from his home to be disproportionate ‘in the context of the flexibility given by and the changed work practices of workers everywhere’, since Covid-19 emerged (ADJ-00029323).

In fact, the ‘grey area’ associated with this subject surfaced in a case before the Employment Appeals Tribunal back in 2014, when it overturned a dismissal decision arising from the use of covert CCTV cameras at a Dunnes Stores’ delicatessen counter. The Tribunal found that whilst the employee had admitted to theft, it was of the view that the investigation and disciplinary process invoked by the company fell short of acceptable practice [Deegan v Dunnes Stores (2014) 2 JIEC 2506]. Notably however, on appeal, the Circuit Court overturned this decision, finding that there were substantial grounds justifying the dismissal, as ‘there was not only a breach of company policy of which she was aware but there was a breach of trust’.

Likewise, in 2020 an airport-based duty-free shop worker failed in his bid to have his dismissal overruled, after he was caught on camera putting stock into his bag. Specifically, he claimed that the CCTV evidence used against him was gathered ‘in a covert, or illegal manner’. Having pointed out that she had ‘no statutory function to consider any matters relating to the Data Protection legislation’,the Commission’s AO proceeded to explain that she ‘was not precluded from admitting it into evidence’ (ADJ-00017759). Case precedents then reviewed by the AO included Pacelli v Irish Distillers Ltd. (2004 ELR 25), where it was emphasised that the respondent ‘had a duty to curtail losses which impact upon profitability and may ultimately deprive its shareholders of their rightful dividend’ and that any investigation has to have regard to all of the facts, issues and circumstances. Significantly, the consequential decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Lopez Ribalda & Ors v Spain (2019) also featured in her finding. This consequential ECHR case overturned an earlier court decision, serving to support dismissals at a Barcelona supermarket on foot of evidence secured via covert cameras.

These precedents serve to support the view that covertly collected footage is often admissible in legal proceedings. For example, the  RTÉ Prime Time Investigates programme’s use of hidden camera footage at the Áras Attracta nursing home - giving rise to community service and prison sentences for employees - confirms that the courts in Ireland are reluctant to exclude evidence solely on the basis that it’s in breach of data protection laws. Indeed, this was exactly what a Prison Officer discovered in 2012, further to his unsuccessful High Court bid to stop his employer using CCTV footage of him allegedly assaulting an inmate. The judge in this case ruled that his claim of a data protection infringement was simply ‘devoid of merit’.

Surveillance: What Is Not Allowed? ⚓︎

Turning to what may not be allowed, one of the more striking third-party decisions in this area concerned a factory worker who was dismissed after he was spotted at work on his land whilst on sick leave. In this 2005 case, the Tribunal awarded him €40,000 for unfair dismissal, as ‘there was a disregard for fairness in the way the respondent carried out its investigation’. This related to the 36 photos that were taken of the employee under surveillance by a private investigator retained by his employer Kerry Ingredients (UD1421/2003). The finding is in line with the Gresham Hotel case in the same year, when a supervisor was asked to explain some of her actions that had been recorded by camera, giving rise to her dismissal. However, this dismissal decision didn’t pass the Data Protection Commissioner’s (DPC) test, as when her personal data had been gathered, she wasn’t informed of the purpose for which management intended to process the data (DPC Annual Report 2007).

Much more recently, in March 2020, the High Court overturned a decision of the DPC and the Circuit Court in a case where the use of CCTV footage was used in the disciplinary process. In this instance the Court found that there was a breach of data protection legislation and that CCTV footage can be used for specified purposes - including disciplinary procedures - provided this purpose is made clear to employees.  This case serves to highlight that whilst the specified purposes can be flexibly interpreted, they cannot be broadly interpreted. As a result, the employer revised the stated purpose of the CCTV to ‘prevent crime and promote staff security and public safety. If, in the event of viewing CCTV for the specified purpose, a disciplinary action is observed, the CCTV can be used for the purpose of a disciplinary investigation’ [Doolin v DPC (2020) IEHC 90].

In 2019 the same subject drove a WRC finding of constructive dismissal in respect of a dental technician who resigned from her job after discovering a secret camera pointing at her desk. She had not been informed of the camera’s installation and as no adequate reason was given by the employer as to why the device needed to be concealed, it was adjudged to be ‘sufficiently damaging to the relationship of trust to which both parties are entitled’ and ‘amounts to a breach of the implied term of trust and confidence .. going to the root of the contract, entitling the complainant to resign and claim constructive dismissal’ (ADJ-00012025).

Warning – What Are the Lessons? ⚓︎

The suspended jail sentences and €1m fine for spying on staff at its French outlets, at Swedish furniture chain IKEA last June, serve as a timely reminder that staff surveillance is a sensitive and serious subject. Notably, this judgement follows hard on the heels of last year’s €35m fine on H & M (the multi-national clothing retail company) for its illegal staff surveillance activities.

Looking for the ‘lessons’ or ‘learning points’, the Washington Post recently reported that there is plenty of evidence to show that staff monitoring doesn’t necessarily accomplish management’s goals. That is, as opposed to oppressive employee monitoring, management’s aims would be better served by setting clear-cut, realistic objectives that are customised to each team and its needs. And at the same time on the same theme, the Financial Times reminds us that ‘reducing workers to automata in calculations of their worth could be a highly expensive error’.

In a similar vein, Professor Azer at Coventry University advises employers to adopt an ‘ethics of care’ approach to staff, entailing an investigation into their surveillance practices and an analysis as to how exactly line managers use them. Azer warns that some staff find workplace surveillance more difficult than others, based largely on the extent to which they think it invades their privacy, and how they weigh the risks and benefits of sharing their data – as influenced by cultural background, gender and context. For example, those already struggling with homeworking, perhaps because they have to care for children at the same time, are likely to feel that such surveillance makes their lives harder. So, in such stressful ‘needs must’ scenarios, some employees evade the surveillance techniques by keeping an automatic mouse-moving application open, thus ensuring that they seem to be always online!

In conclusion, it is clear that employers should ensure that the investigations (as proposed by Prof. Azer above) confirm that employees are aware as to what data is collected about them and how it's used, and they should also hold open discussions with workers and unions on the role and effects of these monitoring practices. The bottom line is that if workers feel that their employers care about them as individuals, they are more likely to feel empowered and trusting towards them, and less likely to react negatively or deploy avoidance tools.

Finally, from a colder legal perspective, when it comes to surveillance tools, employers would do well to note that:

It will normally be judged inappropriate (and unlawful) where the necessary information can be obtained by alternative means.

• They should follow an appropriate data protection impact assessment, that documents the specific need, focus and timescale of the surveillance, whist ensuring that it is proportionate to the circumstances.

• They should only take place in exceptional circumstances and should be sanctioned by senior management following legal advice.

• Policies should be in place (and distributed) prohibiting covert recordings and listing those circumstances where they may be appropriate (e.g. criminal investigations, health and safety, gross misconduct).

So, whilst the DPC’s and the Court of Justice of the European Union’s position on surveillance tool usage and data protection constraints remains relevant and is evident in the preceding national case law review (i.e. that it should not disintegrate into an obstruction of genuine legitimate interests), it would still be wise for employers to consider the wider contextual circumstances.