Today's EAT review concerns the case of James O’Connor v Galen Limited (UD1514/2009), which involved covert surveillance of an employee prior to his dismissal.

Case Name: James O’Connor v Galen Limited (UD1514/2009)

Legislation: Unfair Dismissals Acts, 1997 TO 2007 (the “Acts”)

Subject Matter: Dismissal on grounds of gross misconduct; legality of surveillance.


Facts

The claimant was employed as a sales manager in charge of a team of five staff. He was dismissed in January 2009 on the grounds of gross misconduct based on a surveillance operation carried out by the company. The allegations made against him included fraud, falsification of records and inaccurate fraudulent recording of financial transactions.

The respondent gave evidence of how he became aware of the issues and said the poor sales performance was a ‘trigger’ for an investigation. Unbeknownst to the claimant, the respondent placed a tracking device in his company car. The tracking device showed that the car remained in Cork City on days where signed expenses forms stated that the claimant had travelled to Limerick and Kilkenny. At no point before or during this surveillance was the claimant notified of the operation. In addition, his expenses reports were accepted and approved by the respondent. Also, the respondent engaged a firm of risk management investigators to carry out surveillance on the claimant on two dates in the summer of 2008.

The claimant was sent a letter asking him to attend a disciplinary meeting. The letter contained a brief summary indicating that he would be asked to explain allegations made against him. During the course of the hearing the claimant was provided with a one page report on the surveillance operation. The claimant was informed fifteen minutes after the meeting that he was being summarily dismissed. The following day, a formal letter of dismissal was issued to the claimant by the acting human resource manager.

The claimant set out that he was casual in filling in his expenses forms and that often they were inaccurate. He also said that some of his diary entries were wrong and that he was not ‘whiter than white’ in his recordings. He further stated that he was at no point made aware of any surveillance operation.


Determination

The Tribunal stated that the dismissal was unfair under the Acts. They found that:

* The surveillance equipment used was without the knowledge of the plaintiff
* The letter sent to the claimant did not sufficiently set out the allegations against him
* The respondent failed to provide the incriminating evidence collected through surveillance in advance of the meeting and failed to give the claimant a reasonable opportunity to consider the evidence in accordance with their disciplinary policy.
* Insufficient time was taken in reaching the decision to dismiss the complainant, the decision having been notified fifteen minutes after the conclusion of the Meeting.

However the Tribunal was satisfied that the claimant made a significant contribution leading to his dismissal and reduced the awarded sum to €30,000 as compensation.


Legal Review

This case raises several issues for an employer; the most notable is privacy in the workplace. It is a consideration for any employer when faced with a possible breach of an employee’s duties, whether or not to carry out an element of surveillance on the employee.

There are many reasons why an employer may wish to monitor his/her employees. The internet and use of e-mail have created an efficient, albeit less formal, method of doing business. The risks to employers from this informality includes claims for harassment and discrimination as a result of employee’s inappropriate use of emails and internet at work, and also an increase in non-work related emails on company time.

With the efficiency of information technology, an increased number of employees are working from home and, like the case at hand, may only occasionally visit their offices. Employers may legitimately require the assurance that employees are spending their time on work related matters and not, as the claimant in this case allegedly had done, handing in expenses forms for trips not taken.

The extent to which an employer may monitor his/her employees is not a clear cut one. Employees are extensively protected by both the Data Protection Acts 1998 and 2003 and by privacy related case law under the European Convention of Human Rights.

Surveillance of employees at work involves “data processing” and is subject to the principles outlined in section 2 of the Data Protection Acts. Compliance with section 2 requires that:

* The data or information must be obtained and processed fairly,
* The data must be kept only for a specified and lawful purpose,
* The data must not be used in any manner incompatible with that purpose,
* The data must be adequate, relevant and not excessive in relation to that purpose,
* The data must not be kept for longer than is necessary for that purpose and
* Security measures should be taken to ensure that the data is kept safe and secure.

Where an employer wishes to conduct surveillance, it must be ensured that he/she confirms with the above rules. In order to do this, a clear policy on the use of IT resources by staff should be adopted which outlines how unauthorised use will be dealt with.


A Balancing Exercise

Employers must ensure that any surveillance is conducted fairly. The monitoring should be transparent and proportionate to the harm which an employer is seeking to protect against.

There is therefore a balance to be struck between the invasive nature of monitoring employees and protecting the legitimate interests of the employer. In order to appropriately strike this balance, an employer’s policy should comprehensively set out his/her position. Should he/she decide to engage in surveillance of email, internet use or CCTV, the policy must ideally provide for all these.

The Data Protection Commissioner carefully investigates reports of breaches of the Data Protection Acts and in a case involving the Gresham Hotel set out that a covert surveillance which went beyond the intended purpose could not be relied on. The hotel therein installed cameras to monitor cash handling behind a bar, an investigation which did not involve the complainant, and when the same footage was later used to terminate her employment, the commissioner held that there had been a breach of the data protection laws.

The European Court of Human Rights case Copland v United Kingdom (2007) is also interesting. The court held that Article 8 of the ECHR (“everyone has the right to respect for his private and family life, his home and his correspondence”) was breached when a college monitored an employee’s email, telephone and internet use. The ECHR set out that an employee “had a reasonable expectation as to the privacy of calls made from her telephone…the same expectation should apply in relation to…email and internet usage”.

The International Labour Office (“ILO”) has published a code entitled the ‘ILO Code of Practice on the Protection of Worker’s Personal Data’ which provides guidance on rules and policies in the workplace. In relation to the monitoring and surveillance of employees, clause 6.14 sets out that:

* If workers are monitored they should be informed in advance of the reasons for monitoring, the time schedule, the methods and techniques used and the data to be collected, and the employer must minimise the intrusion to the privacy of workers.

* Secret monitoring should be permitted only:
- if it is in conformity with national legislation; or
- if there is suspicion on reasonable grounds of criminal activity or other serious wrongdoing.

Although the guidelines are not binding, they influence the thinking of legislators and decision makers such as courts and tribunals.


Conclusion

Without a clear policy incorporated into the employer/employee relationship and a fair implementation of that policy, employers will struggle to succeed in an employment case where an employee’s privacy is at issue.