Judicial scrutiny of the use of investigators by employers has highlighted the complexities created by the overlap of employment and data protection laws. Further complexity has been created by the implementation of the General Data Protection Regulation (GDPR) on May 25, 2018.
Employers need be live to the risks of engaging private investigators and relying on evidence that is provided in the context of disciplinary proceedings. Difficult issues of admissibility are only now beginning to be considered in cases before the Workplace Relations Commission (WRC).
Difficult issues of admissibility are only now beginning to be considered before the WRC
SUCCESSFUL USE OF CCTV
To date there have been a significant number of cases where WRC adjudicators have found that private investigators' evidence is admissible. In the recent case of A Quality Controller, v A Fresh Produce Company (ADJ-00006768), the claimant's counsel raised strenuous objections as to the use of both private investigator and CCTV evidence as a basis for disciplining the employee.
The adjudicator rejected these arguments. In this case, the claimant alleged that he injured his back lifting a box of apples. He then remained on sick leave for a significant period.
The employer's health & safety manager engaged a private investigator to monitor the claimant while he was on sick leave. The observations of the investigator led the manager to conclude
that the alleged incident had not happened.
The employee was dismissed for breach of the sick pay policy. In this case both CCTV evidence and private investigator evidence was relied on by the respondent to justify the dismissal. In
coming to her decision, the adjudicator relied on the H&S manager's evidence that she had discretion to engage a private investigator to monitor an employee suspected of fraud and
misconduct in relation to workplace accidents.
The adjudicator found that in this particular case the observations of the private investigator "contributed to but were not central" to the respondent's findings. In those particular circumstances, the "discretional use of surveillance" by the manager was acceptable.
It was noted at the WRC hearing that during the internal appeal hearing the technical director did not rely on the report of the private investigator to uphold the dismissal but instead relied on the CCTV footage of the incident.
In Revenue Protection Officer v Public Transport Provider (ADJ-00007662) the claimant alleged that he could not drive due to a back injury but was observed by a private investigator driving back and forth to the gym, lifting heavyweights and running on a treadmill.
The claimant's representative objected to the private investigator's evidence and suggested the private investigator was "keen to impress" his client as this was his first assignment. On balance, the WRC adjudicator found that the private investigator's evidence was more believable and on the balance of probability, the claimant was lifting weights and running on a treadmill.
The adjudicator raised no issue in relation to the use of the private investigator's evidence. In this case, the adjudicator relied heavily on the fact that the claimant was employed as a revenue protection officer and that his role required honesty, in finding the dismissal to be fair. As a result, she determined that the claimant had committed a "very serious breach concerning honesty and integrity, trust and confidence."
CRITICISM OF THE USE OF CCTV
The key case that criticises the use of private investigators is the High Court case of Sweeney v Ballinteer Communities School  (IEHC131), which involved alleged bullying resulting in a personal injury.
The employer engaged a private investigator to carry out surveillance on the plaintiff for a fourday period. This was found to be "a most serious harassment of the plaintiff". In this case, the surveillance was brought to an end due to the intervention by the Gardaí and by an Order of the court.
The use of surveillance was found to be a very significant issue in this decision as it contributed to the injury suffered by the plaintiff. This led to a significant award of €88,000 (to include aggravated damages) being made in the plaintiff's favour.
In the more recent Employment Appeals Tribunal (EAT) case of Austin Power v Oxigen Environmental (UD1047/2013), the EAT was extremely critical of the use of a private investigator who was retained to investigate whether the employee was lifting waste from his own home, in breach of the employer's policy.
The private investigator carried out surveillance on five separate dates. The claimant did not deny the allegations. It emerged in evidence that there had been a change in the company policy about the collection of the lifting of waste, which had not been properly notified to employees.
The EAT admitted the private investigator's evidence. However, in making an award, the EAT was critical of the use of surveillance and stated that "rather than expend money on a private investigator, the respondent could have ensured that employees were unequivocally informed that the practice was to discontinue and that the consequence of continuance would be dismissal of an employee in question."
The Tribunal went even further in Jerry Clarke v Boliden Tara Mines Limited (UD57/2012). In this case, the private investigator carried out covert surveillance on two dates and produced a report including video footage. Once again, this case involved an alleged breach of the respondent's sick pay policy.
Ultimately, the claimant was dismissed for misconduct in light of that evidence. During the course of the hearing, an application was made by the representative for the respondent to admit the private investigator's evidence and to view the CCTV footage. The claimant's representative objected.
The Tribunal refused to admit the sworn evidence from the private investigator or view the CCTV footage. It found that the action taken by the respondent in employing private investigators was disproportionate given that the claimant had only been on sick leave fewer than three days when surveillance was commissioned.
At that time, the claimant was certified as sick and there was no evidence of previous malingering by the claimant.
ALLOW EMPLOYEE TO REVIEW EVIDENCE
In light of the increased obligations on data, controllers and processors it is essential that employers ensure their investigators are fully licenced and that they direct them to comply with their data protection principles in carrying out any surveillance.
The DPC has made it clear that covert surveillance of individuals is very difficult to reconcile with the Data Protection Acts and has openly criticised the use of covert surveillance except in limited circumstances1.
At the very least, an employee should be allowed to review the surveillance evidence during the investigation process and allowed to offer an explanation. In the past, the DPC has exercised its powers under Section 10(3) Data Protection Act 1988.
In case study 14 of 20092, the DPC found that the retention of a private investigator was not justified in circumstances where the company had not highlighted its concerns to the employee in question. As a result, it ordered the destruction of surveillance footage gathered by the private investigator.
AVOID RELIANCE ON PRIVATE INVESTIGATOR
The aforementioned cases show the risks for employers of relying mainly or solely on evidence of a private investigator to support a dismissal. It is also open to the employee to lodge a complaint to the DPC.
The DPC has the power to order destruction of the evidence so that it cannot be relied on at a future hearing.
A claimant can also pursue civil proceedings for breach of privacy under Article 8 of the European Convention on Human Rights (ECHR).
This was highlighted recently when a minor settled her privacy and data protection case with Irish Life for €50,000. Her claim arose when a private investigator unnecessarily captured images of the minor without consent while carrying out surveillance on her mother.
Employees can unearth the use of investigators by making Data Subject Access Requests thereby, increasing the likelihood of civil privacy law claims.
Claimants can also object to the admission of the private investigator evidence and seek to exclude that evidence based on its "precipitous" or oppressive nature. To date, the WRC has taken a mixed approach to the admissibility of such evidence, which is unhelpful.
Adjudicators who have considered data protection and admissibility issues have generally followed the DPC's guiding principles by focusing on the proportionality of the surveillance and
the extent of the reliance on that surveillance.
Given the increasing interplay between employment and data protection laws, the growing number of civil law privacy cases and the media interest around the implementation of GDPR this issue will continue to grow.
As it stands, the clear message to employers is to make sure that there are clear grounds to suspect wrongdoing before instructing an investigator or they may fail to persuade courts and tribunals that this is a proportionate step.
In addition, it would be sensible not to rely entirely on private investigator evidence as a basis for disciplining or dismissing employees.
In short, an employer needs to have solid grounds to suspect wrongdoing of a serious nature before retaining a private investigator to bolster their case.
Private investigators are commonly retained to provide evidence of an abuse of a sick pay policy. In such cases, it is recommended employers utilise their internal processes, namely the
requirement for certification of absences as well as compelling an employee to attend their company doctor.
If their suspicions are confirmed, they can then consider obtaining private investigator’s evidence as "back up", but always acting in a reasonable and proportionate manner and in accordance with data protection and privacy rights.
1. Data Protection and CCTV Guidelines- https://www.dataprotection.ie/docs/Data-Protection-CCTV/m/242.htm.