Categories
Employment Claims Employment Law Procedures and Policies

Hidden Cameras in the Workplace-European Court of Human Rights Approves in Certain Circumstances

Are you concerned about the use of cameras in the workplace? Hidden cameras?

If you are a recent European Court of Human Rights decision will disappoint and dismay you.

The case López Ribalda and others v Spain was an appeal from decision of the lower Chamber that the Convention for the Protection of Human Rights and Fundamental Freedoms had been breached.

Article 8 of the Convention provides for respect for the person’s private and family life:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In this Spanish case five workers had brought a case to Europe that their right to privacy was breached when they discovered there was hidden surveillance cameras in their shop.

The footage gathered by the covert cameras formed the basis for the dismissal of the employees due to losses and theft in the business.

The European Court of Human Rights decided that the rights of the workers were not breached and there was “weighty justification” for the use of the hidden cameras.

The Court also stated that it was for individual states to decide on laws, if any, covering the topic of video surveillance in the workplace.

The legal principles involving video surveillance in the workplace

The court said that the principles set out in the Barbulescu v Romania case were the correct principles to apply when it came to video surveillance. These principles involve 6 questions:

  1. Has the employee been notified of the video surveillance?
  2. What is the extent of the monitoring?
  3. Are there legitimate reasons for the cameras?
  4. Are there less intrusive ways of achieving the employer’s legitimate objective?
  5. What are the consequences of monitoring the employee?
  6. Are there safeguards for the employee?

In the López Ribalda and others v Spain case the monitoring of the employees was at an area of the shop where the general public was being monitored-the checkout area-and it was not unreasonable to monitor such an area where the employee’s expectation of privacy would not be the same as, for example, in toilets or employee’s locker areas.

It was also noted that the surveillance only lasted 10 days and ceased as soon as the objective was achieved-this was to identify which employees were responsible for the theft and losses occurring.

It was accepted by the Spanish court, and the European court of human rights, that it would have defeated the purpose of the surveillance if the employees were advised about it in advance. Therefor the right of the employee to be told must be counterbalanced by the legitimate objective of the employer to find out who is responsible for theft.

The Court also decided that this right to be told was only one factor when the decision had to be made about the proportionality of the employer’s action was to be assessed.

Takeaway

  1. The employee’s right to privacy in the workplace is not absolute
  2. The employer’s action must be viewed in the light of the specific facts of the case and whether the steps taken by the employer were in pursuit of a legitimate aim and were necessary and proportionate.
Categories
Employment Claims The Employment Contract

Was Doctor an Employee or Self Employed Contractor?

Employee or self employed?

This was the case of a medical doctor with his own practice who claimed he was an employee in respect of his work for a training provider.

This is a common issue: whether an individual was an employee or was self-employed, notwithstanding the statement in a contract that the individual was not an employee.

All employment claims will depend on the claimant being an employee. If the claimant falls at this hurdle any other claims-for example terms of employment or unfair dismissal-will not be heard.

This case involved a medical practitioner who provide training services for the respondent and brought a claim under the Terms of Employment (Information) Act, 1994 seeking a written contract of employment. He had received a contract dated April 1st 2006 which described his position as being ‘an independent contractor’ and stated that he ‘shall not be an employee’ of the respondent.

The first question that arose, therefore, was whether the complainant was an employee or an independent contractor.

The WRC Adjudication Officer noted that there is no one test to determine whether a person is engaged on a contract of employment (contract of service) or on a contractor contract (contract for services).

The AO referred to a UK case in which a number of tests were set out as follows:

1)      Does the person performing the services supply his own equipment?

2)      Can he hire his own helpers?

3)      Does he carry any financial risks and to what extent?

4)      What opportunity does he have to make a profit?

5)      To what extent does he carry the responsibility for investment/management.

He referred also to the Revenue Commissioners approach and their tests to determine employment or self-employment as follows:

1)      Is under the control of another person who directs as to how, when and here the work is to be carried out,

2)      Supplies labour only,

3)      Received a fixed wage

4)      Cannot subcontract the work

5)      Does not supply materials for the job

6)      Does not provide equipment other than small tools of the trade

7)      Is not exposed to personal financial risk in carrying out the work

8)      Works set hours or a given number of hours

The AO was satisfied that the complainant in this case, a medical doctor, satisfied the tests of the Revenue Commissioners. In short it was recognised that the complainant received a fixed and regular income, was fully integrated into the respondent’s activity, and satisfied the other tests of the Revenue Commissioners.

The respondent in this case sought to connect the fact that the complainant was also involved in other self-employed work-as a GP in his own general practice-and was paid a locum allowance to undermine the argument that he was an employee. However, the Adjudication Officer did not accept this argument and said it had ‘no merit’.

“I do not accept therefore that the payment of a locum allowance, whatever the recipient chooses to do with it, affects or alters the substance of the employment relationship between an employee and an employer which must be considered by reference to the tests set out above.”

He also found

In Hall (Inspector of Taxes v Lorimer [1994] IRLR 171 the court endorsed an explanation approved by the lower court (whose judgement was on appeal to it);

‘In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details.’

The Adjudication Officer had no hesitation in finding that the complainant was an employee and was entitled to be given a written statement of his terms of employment, in accordance with the Terms of Employment (Information) Act 1994.

However, the Adjudication Officer did not consider it ‘just and reasonable’ to make any order for compensation retrospectively as the ‘current respondent whose breach of the Act arises for the first time as a consequence of the finding in this case’. He did order that a statement of terms of employment be given to the complainant.

This decision was issued on 18th December 2019 and you can read the whole decision here. It is a useful reminder of the tests which will be applied to determine the issue of employee versus independent contractor.

Categories
Employment Claims Equality and Discrimination

Two Discrimination Cases-Different Responses from Employer, Similar Outcome for Employee

employment claims
Cross examination notes

I have been involved in two discrimination cases which have been finalised in the last few weeks. The outcomes of the cases, coincidentally, are similar and have culminated in compensation for both employees.

The first one involved a case of sexual harassment in the workplace and resulted in a compensation payment, tax free, of €30,000. You can read more about that case, including the full decision of the WRC, here.

The other case, one you will not read about because it has been settled before ever going to the Workplace Relations Commission, has been settled for a similar sum of money. It was a discrimination case, not sexual harassment, as defined by the Employment Equality Act 1998.

The amount of work involved for me in both cases differed wildly, however.

The sexual harassment case involved a great deal of time and work and involved three days at the WRC: the first day was for mediation, the second day for the hearing, and the third day was to complete the hearing. Evidence had to be taken from two witnesses, cross examination of at least three witnesses, and booklets and submissions had to be prepared and submitted.

The second case, by contrast, only involved the submission of the complaint to the Workplace Relations Commission; shortly after this the solicitor for the employer made contact and the case was settled.

Responding to claims-professional or amateur?

I categorise responding to employment claims in two ways: professional or amateur.

When you bring any legal case or employment claim it is impossible to know how the other side will react.

One response is a pragmatic approach and a realistic attempt to settle the case by the party who is in the weaker position and is at risk if the case goes to a full hearing.

The risk, if you are the employer, involves an award of compensation against you, legal costs of representation, time taken to prepare for the case, and reputational damage.

The other response is to substitute cool analysis of the facts and the law with an emotional response to ‘fight the case’ to the end. This does not make much sense, quite frankly, but it is an easy reaction to embrace.

And if you have the money and are fully aware of the risks and costs, knock yourself out, if you want to. But the ‘professional’ approach, using logic and evidence rather than emotions, might serve you better in the long run.

Now, the professional response may be to fight the case in all circumstances, in order to discourage claims against you generally or copycat claims. But you should make this decision rationally after assessing all the relevant factors rather than responding emotionally.

The employee, too, must weigh up the chance of success versus the associated costs of representation, the probability of winning, and the potential remedies that can be gained. (This blog post, How to Make a Decision to Bring an Employment Claim to WRC or Not, might be worth a read.)

Categories
Data Protection Employment Claims

The Use of Private Investigators By Employers-Caution Needed

Have you been tempted to engage the services of a private investigator to carry out surveillance on one of your employees?

Perhaps you are trying to gather evidence of breach of a restrictive covenant in the contract of employment? 

Or maybe you want to ascertain if an employee is working somewhere else or carrying on a business in breach of the contract of employment?

Restrictive covenants

Many contracts of employment contain restrictive covenants. The restrictive covenants aim to restrict the employee from doing certain things after she leaves the employment, typically 

  1. Restricting the employee from working in the industry for a certain period of time in a specified geographical area
  2. Restricting the employee from poaching staff from the old employer
  3. Restricting the employee from approaching old customers/clients with a view to moving them to the new employer, or the employee’s new business.

Whether the employer takes steps to enforce the restrictive covenant will depend on the circumstances, including the importance of the departing employee to the business and the potential damage he can cause if the covenants are not enforced.

The employer will have to weigh up the potential costs and benefits from attempting to take legal proceedings to enforce the post termination restrictions. Before commencing legal proceedings, however, the employer will need to be satisfied that a covenant is, or is in danger of, being breached.

This involves gathering evidence and the steps that the employer is entitled to take to gather the evidence.

Credit Suisse bank covert surveillance

The Credit Suisse bank was forced to apologise to a former employee, the head of wealth management, when it transpired that a covert surveillance operation was carried out due to the fear of the former employee poaching banking colleagues and clients. An independent inquiry was carried out to investigate the matter. This led to the resignation of the bank’s chief operation officer, who had gone on a solo run, and the finding of no evidence that the former employee was in breach of any restrictive covenant.

Private investigators in employment disputes

Private investigators would be frequently used in personal injury claims but not in restrictive covenant employment contract cases.

The question arises, however, as to the boundaries, having regard to privacy and data protection issues, of such operations.

In Ireland, in Sweeney v Ballinteer Community school, the principal of the school was criticised by the High Court for having a private investigator follow a teacher for four days in a dispute about bullying and harassment.

In fact, the High Court held that this surveillance of Ms Sweeney was itself ‘harassment of the plaintiff’ and could easily have tipped her into mental illness if she became aware, especially in a case which saw Mr Sweeney bring legal proceedings against the school on the grounds of bullying and harassment.

The operator of the Luas transport service, Transdev, used a private investigator to follow one of its drivers who was moonlighting as a taxi driver on his wife’s licence. The WRC decided that the decision to dismiss him for gross misconduct was reasonable.

The data protection commissioner has indicated that there must be a strong reason for surveillance before engaging the services of a private investigator.

Takeaway

If you are an employer and you believe a former employee is in breach of a restrictive covenant and you want to engage the services of a private investigator, tread carefully. You may have to justify the use of the investigator later on in any legal proceedings and you will need a sound justification having regard to the privacy and data protection rights of the employee.

Personal injury cases, however, have frequently featured the use of investigators engaged by the insurance company defending the claim and this is likely to continue.

Categories
Employment Claims

The Cost Effectiveness of Bringing Certain WRC Claims

Labour Court Appeals

I took a quick look through the latest decisions from the WRC this morning. There is a facility on the WorkplaceRelations.ie website which allows you to see the latest decisions and the week in question is from the 23rd September 2019 to 29th September 2019.

I only glanced at about 5 decisions but of those 5 two grabbed my attention.

Claim for €70

The first one was ADJ-00021926 which was a claim by a maintenance operative against a property maintenance company. This involved a claim under the Industrial Relations act 1969 for outstanding expenses of €70 due to the worker.

The employer did not attend the hearing and the WRC recommended that the employee be paid the €70 and a further €350 for the inconvenience of having to claim to the WRC.

The problem for the employee, however, is that as his claim was brought under the Industrial Relations Act 1969 the recommendation is not legally binding or enforceable.

The second case that took my attention was a claim for redundancy by a kitchen fitter against a kitchen provider (ADJ-00016292). The employee was successful in the case which was held over 2 days and was awarded €619.

Cost effectiveness

What struck me from both of these cases was the question of cost effectiveness for all parties: the employee, the employer, and the WRC.

In the first case involving the property maintenance company the claim at the outset was for €70 and it was brought under an act that can only result in an unenforceable recommendation; this may or may not be why the respondent did not show up.

The second case ended up, after 2 days, with an award of €619 but when you consider the cost incurred by employee, employer, and WRC over a 2 day hearing you would have to question the cost effectiveness of claims like these.

Perhaps if a claim was below a certain amount it could be dealt with without the need for a hearing; perhaps written submissions by both parties (they are supposed to send these into the WRC in any event) and a desk based decision by the Adjudicator.

I am not questioning the right of any complainant to submit a claim, regardless of the monetary value, and recognise that an employee may wish to bring a claim on a point of principle and to show that he/she was treated unfairly and/or unlawfully by the employer.

But a more cost effective method might be worth considering for claims below a certain monetary value which might be to the benefit of all parties.