I have concerns that employees may be abusing our Sick Leave Policy. I would like to engage a Private investigator to check their whereabouts when they call in for sick days. How do I handle it?

Jennifer writes:

Engaging a Private investigator to carry out covert surveillance on an employee should not be undertaken lightly by an employer as it raises issues under data protection and employment law.

1. Data Protection

The Office of the Data Protection Commissioner (the “ODPC”) has held that a decision by a data controller (i.e. an employer) to engage the services of a private investigator to gather personal data surreptitiously about a data subject (i.e. an employee) carries very serious risk of breaching the provisions of the Data Protection Acts and the general right to privacy protected by the Irish Constitution, the European Charter of Fundamental Rights and the European Convention on Human Rights.

The ODPC have set out the following rules which must be complied with by an employer when considering engaging a private investigator to carry out covert surveillance on an employee.

(i) Prior to passing any instructions to a private investigator in respect of any individual, the data controller should have a written contract in place with the private investigator which meets the requirements of Section 2C(3) of the Data Protection Acts.

(ii) Any processing of information by private investigators on their behalf must be undertaken in full compliance with the Data Protection Acts.

(iii) The private investigator is expected to comply at all times with the Data Protection Acts and should not perform their functions in such a way as to cause the data controller to breach any of its obligations under the Data Protection Acts.

(iv) Any unauthorised processing, use or disclosure of personal data by the private investigator is strictly prohibited.

(v) Where the private investigator, pursuant to its obligations under contract from the data controller, processes the personal data of an individual on behalf of the data controller, the private investigator should:

* Process the personal data only in accordance with the specific instructions of the data controller;
* Process the personal data only as is necessary for the fulfilment of its duties and obligations under the contract with the instructing data controller;
* Implement appropriate measures to protect against accidental loss, destruction, damage, alteration, disclosure or unlawful access to the personal data in their possession;
* At the conclusion of each investigation deliver all data collected and processed under the contract of service to the instructing data controller and delete all such personal data held by itself at that time;
* Not further disclose the personal data to any other party except with the express approval of the data controller;
* Not seek to access personal data held by other data controllers which is not in the public domain without the consent of the data subject or unless otherwise permitted by law.

Employers should therefore carefully consider whether surveillance is warranted and appropriate in the facts of each individual case.

2. Consequences of obtaining surveillance data unlawfully

It is critical that surveillance evidence is obtained lawfully and in accordance with the Data Protection Acts. An employer could be left in a difficult situation where they rely on a private investigator’s report to dismiss an employee, however, if the information was illegally obtained and the employer cannot then rely on that information in subsequent proceedings. The ODPC has the power to order the destruction of data which could be applied to a private investigator report.

In case study 10/2008, after a complaint was made to the ODPC by two employees about covert CCTV surveillance of their attendance times at work, the employer found themselves in a position where they could not rely on that CCTV information to engage in disciplinary action against those employees for irregularities in their attendance.

3. Surveillance reports and fair procedures

Use of surveillance in an unfair manner and failure to provide an employee with the opportunity to consider and respond to this in the context of a disciplinary hearing, may also potentially lead to an employee successfully claiming unfair dismissal against an employer. The Employment Appeals Tribunal has been consistent with regards to an employee’s right to view and respond to CCTV evidence in the course of a disciplinary process and, from a fair procedures perspective, the same right to defend oneself against an allegation of wrongdoing will apply where that allegation arises from private investigator surveillance.

In the case of McGarrigle –v- Donegal Sports and Golf Centre Limited, UD680/2002, a Shop Assistant’s employment was terminated following an incident whereby he was observed on two separate occasions on security video placing money given to him by a friend into his pocket. In finding that fair procedures were not followed, the EAT found that while it was reasonable for the Respondent to investigate and suspect some wrongdoing, the Claimant was not afforded the opportunity to rebut the allegation, and in particular he was not shown the video recording.

4. Bullying and personal injuries

In the High Court personal injury case of Sweeney –v- Balinteer Community School [2011] IEHC 131 the Court was scathing in its criticism of a Principal who had engaged a private investigator to carry out surveillance on the Plaintiff over a four day period. The Court, in the circumstances of this case, found these actions wholly inappropriate and found that this action by the Principal amounted to “a most serious harassment of the Plaintiff by him”.

In this case, the Plaintiff was followed during the day by a car with two occupants which the Court accepted made her feel “hunted, threatened and terrified”. Garda intervention ascertained that the Plaintiff was being followed by a private investigator personally employed by the Principal, without the knowledge of the Chairman or of the Board of Management of the School.

The Court relied on the fact that the Principal was aware of the Plaintiff’s long and completely uncharacteristic absences from work, which were medically certified on each occasion as being due to work related stress. The Court found that the Principal knew, or would have known had he chosen to give the matter thought, that this medical history rendered the Plaintiff very vulnerable to some form of mental illness such as a nervous breakdown but that the Principal nonetheless arranged for the Plaintiff to be stalked by a private investigator.

The Court found the injury to the Plaintiff arising from the stress of being placed under surveillance was reasonably foreseeable. The Court held that for the Principal to have acted in this manner, whether deliberately or with reckless indifference even though he was or ought to have been aware that mental harm to the Plaintiff might result in this action, amounted in the Court’s judgement to malicious targeting and harassment of the Plaintiff.

The issue of the surveillance carried out by the private investigator, was a very significant issue in this decision leading to an overall significant award in the Plaintiff’s favour, together with High Court costs and it is therefore clear that surveillance carried out in an unimpressive manner where there is knowledge of pre-existing sensitivity on the part of the Plaintiff could, in itself, constitute bullying and harassment such as to cause personal injury.

5. Summary

In summary, while engaging a private investigator may provide an employer with factual evidence of an employee’s abuse of procedures or misconduct, the manner in which such information is obtained must be in compliance with the Data Protection Acts and the surveillance must not be carried out in an oppressive manner. Additionally, the employee must always be given an opportunity to respond to such evidence in the context of a disciplinary process.