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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.
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Employment Law Procedures and Policies

Supreme Court Decides No Right to Legal Representation in Employment Disciplinary Hearing

legal representation workplace supreme court

The Supreme Court has confirmed the Court of Appeal decision regarding the absence of a right of an employee to legal representation in a workplace disciplinary investigation and hearing. This case involves an Iarnród Eireann employee, Barry McKelvey, who faces a disciplinary hearing over allegations of misappropriation of property in the workplace.

At the proposed disciplinary hearing arising from the investigation into allegations of theft the employee, pursuant to his contract of employment, is allowed representation by a work colleague or a trade union representative.

Mr McKelvey wished to be allowed legal representation and the Court of Appeal had decided there was no such right (read about that Court of Appeal case here). He appealed the decision to the Supreme Court who agreed with the Court of Appeal, albet for different reasons.

Supreme Court November 2019

The supreme Court refers to section 14 Unfair Dismissals Act 1977 which states

14.—(1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

(2) Where there is an alteration in the procedure referred to in subsection (1) of this section, the employer concerned shall, within 28 days after the alteration takes effect, give to any employee concerned a notice in writing setting out the procedure as so altered.

(3) The reference in subsection (1) of this section to a procedure is a reference to a procedure that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned, and the references in subsection (2) of this section to an alteration in the said procedure are references to an alteration that has been agreed upon by the employer concerned or a person representing him and by a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing the employee concerned.

(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the grounds for the dismissal, but in determining for the purposes of this Act whether the dismissal was unfair there may be taken into account any other grounds which are substantial grounds and which would have justified the dismissal.

The Supreme Court went on to comment that

What should be involved, instead, is a search for the truth with the employee enabled to make a contribution to that process by stating whatever explanation is available to him or her. After all, while this is not a two-stage process where rights are afforded at a second stage, as in McNamee v Revenue Commissioners [2016] IESC 33 and the cases therein cited, once a complaint is validly made to the Workplace Relations Commission, the burden of justifying dismissal is on the employer through the calling of evidence, and the parties may there be legally represented.

The Supreme Court also observed that many contracts adopt the Industrial Relations Act 1990 code of practice on grievance and disciplinary procedures, as set out in SI 146 of 2000. These procedures do not allow legal representation and the place to start, and end, an examination as to what is allowed is the contract of employment.

The Court also pointed to the case of Mooney v An Post [1998] where the Court held

If the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure

The Supreme Court notes that a difficulty may arise where the contract is silent as to what procedures are to be used but suggests a sensible approach would be to use the procedures set out by the Industrial Relations Act 1990. In this case the contractual entitlement was to be represented by a trade union official or a work colleague.

The Supreme Court went on to hold that the was not entitled to an injunction preventing the disciplinary hearing from going ahead in the absence of legal representation as it held,

The applicant is entitled by contract to have a fellow employee assist him at the disciplinary hearing, or to be represented by a trade union official. By contract, no other or outside individual may represent him.  Read the full Supreme Court decision in Barry McKelvey v Iarnród Éireann [2019] IESC 000 here

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Employment Law Procedures and Policies

Teacher Refused Judicial Review in High Court Seeking to Stop Disciplinary Case Against Her

Are you a teacher?

A recent decision of the High Court may be of interest to you as it involved a teacher commencing High Court legal proceedings as a consequence of being asked to attend a disciplinary hearing.

Background

The allegation against the teacher concerned her conduct towards school staff including the school Principal. The procedures for the suspension and dismissal of teachers provide for the Principal to deal with the issue at Stage 1.

The teacher complained that as the allegation against her concerned her conduct towards the Principal the Principal should not be involved in the procedure. The Board of Management did not agree but eventually it was decided that the Principal would step aside and an independent person would be asked to deal with the stage 1 procedure.

So, the teacher went to the High Court seeking to prevent the disciplinary procedure from going ahead on two broad grounds:

  1. The Principal was biased and had prejudged the issue
  2. The teacher also argued that the procedures did not apply to her as they required the concurrence of the Minister for Finance

The Board of Management’s position was that they were merely applying the well-established, negotiated procedures which were agreed between teachers, unions, the Patrons and management bodies, and the Department of Education.

The Board also took the view that this was a matter with which the High Court should not involve itself as it was a minor matter which, at worst, would result in a verbal warning which would disappear of the teacher’s record after 6 months.

The Board also argued that section 24 of the Education Act, 1998 allows the Department of Education to determine the terms and conditions of employment of teachers and a board of management can suspend and dismiss teacher in accordance with the procedures agreed between the Minister of Education, the boards of management, the patron bodies, and the trade unions.

24.—(1) Subject to this section, a board may appoint such and so many persons as teachers and other staff of a school as the board from time to time thinks necessary for the performance of its powers and functions under this Act.

(2) The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance.

(3) A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.

(4) Pending the agreement of procedures provided for in subsection (3), the procedures applied in the appointment, suspension and dismissal of teachers or other staff immediately before the commencement of this section shall, after such commencement, continue to be applied.

(5) The terms and conditions of employment of teachers and other staff of a school appointed by a board and who are to be paid from monies provided by the Oireachtas shall be determined by the Minister, with the concurrence of the Minister for Finance.

(6) Where all or part of the remuneration and superannuation of teachers and other staff of a school is paid or is to be paid from monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Finance.

(7) Where, at the commencement of this section the employer of the teachers or other staff in a post-primary school is a person or body of persons other than the board of the school, then subsections (1), (3) and (5) shall apply as if the person who or the body which, at such commencement and from time to time thereafter, is such employer, is substituted for the board as therein referred to.

(8) Except in the case of an agreement as provided for in subsection (3), nothing in this Act shall have the effect of altering, after the commencement of this Act, the terms and conditions of teachers and other staff of a school under which they were employed before such commencement.

(9) This section shall not apply to teachers or other staff of a school which is established or maintained by a vocational education committee.

High Court

The Judge in the High Court held that any perception or allegation of bias or absence of fair procedures was adequately dealt with by the appointment of an independent person to investigate.

He also held that the procedures agreed between unions and boards of management formed part of the teacher’s contract of employment and were applicable and in force until they were changed by the Department of Education or were held to be invalid in legal proceedings.

Judge Binchy also noted that a verbal warning was a minor penalty and, provided there was no problem with her conduct, would be gone off her record after 6 months.

In conclusion the High Court held that the matter was of such a minor nature that the procedures adopted by the Board of Management were not amenable to judicial review and he refused the application.

Categories
Employment Law Procedures and Policies

Workplace Investigation and Disciplinary-the Danger of an Overemphasis on Looking for Imperfections in the Procedure

workplace disciplinary procedure

Dmitri was suspended from work for allegedly assaulting a colleague. Susan was suspended on pay while an investigation was being carried out into approximately half a dozen allegations of misconduct.

When they came to me for advice they were very much focused on the procedure adopted by the employer to date. Too focused, in my view.

Let me explain. They had done a bit of research online about disciplinary procedures in the workplace, the entitlement of the employee to fair procedures and natural justice, the importance of any investigation and disciplinary procedure being carried out fairly, and so on.

That’s fair enough.

But it is an easy mistake to get preoccupied with employment rights. These rights may stem from the constitution or statute or the contract of employment.

But remember the employer, too, has rights. And the right to investigate alleged wrongdoing in the workplace is one of them.

Now, Dmitri and Susan in their initial discussion with me were focused on seeking any imperfection or infirmity in how the employer had acted up to that point. I believe that was a mistake and they might have been better advised to address the substantive allegations against them.

But you must not ignore the substantive allegation against you and you must spend as much time addressing this as seeking imperfections in the procedure adopted by the employer.

Because they were so focused on finding imperfections in how the employer had acted in applying the procedure that they had overlooked the allegations against them.

Even though they have rights to fair procedures in respect of the application of the disciplinary procedure I do not believe perfection is required of the employer. Sure, it must be sound and fair and transparent and in accordance with the procedures set out in the workplace.

But the absence of perfection, or a small infirmity in the steps taken, may not be enough for an employee to ground a claim for unfair dismissal on the basis that the procedure lacked natural justice if the allegation is a serious one such as assaulting a colleague to telling a customer to stop “wrecking my head” and “do one”.

Takeaway

My advice is if you are facing serious allegations like Dmitri and Susan is not to get too preoccupied looking for flaws in the procedure adopted to the detriment of addressing the serious allegation against you.

Because employers, especially small ones with finite resources, will not be held to a level of perfection in enforcing discipline in the workplace.

Yes, you are entitled to fair procedures; yes, you are entitled to natural justice; yes, you are entitled to fair play.

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Employment Claims Employment Law Procedures and Policies

The Small Employer Under Pressure from a Surprising Source

Peter and Betty have a small business and never expected this. But they feel stressed and pressurised from a most unexpected source: their new employee.

They have been in business for 17 years and never had any problems with staff.

Yes, there was the occasional, infrequent dispute or argument but nothing that amounted to anything serious. They were never sued or had to face any claim from an employee-in fact, no threats were made against them, not even in the heat of the moment.

But all that changed when they took John on. John is in the job about 10 months now and his mood swings and changeable humour from one day to the next is worrying.

That’s not the biggest concern, however.

John, from an early stage in his employment, was quick to tell Peter and Betty what his employment rights were and how he could bring claims against them for all types of breach. He told them about working time records, rest breaks, public holidays, the WRC, NERA, the Labour Court, the minimum wage, his entitlement to a written contract-the list seems endless.

Peter and Betty never had to face this before and the frequent mention of the Workplace Relations Commission has them tremendously strained and anxious.

The biggest problem in all this, however, is the uncertainty and not knowing what the true situation is.

Is John right and are they ignorant, law breaking, exploitative employers, what can happen next, is John lying or exaggerating, what is the worst outcome, and most importantly: what can they do now.

Peter and Betty are typical of many small business owners up and down the island of Ireland who have successfully and happily employed many people down through the years without any problems or difficulty. They have never had to concern themselves too much with employment law and stuff like that because there were never any issues.

Their accountant made the necessary returns every month or every year and paid the appropriate tax, prsi, universal social charge, and whatever else the government decided had to be paid.

But this constant, low level hostility and implied sense of threat from an employee who is only in the workplace for 10 months and who they look after well is getting to them. It’s even putting a strain on their relationship.

What Peter and Betty needed was a bit of advice and some clarity about their obligations and entitlements and what options were open to them now. How, or was, the relationship with John going to improve in the years ahead; were they looking at this problem in perpetuity with no say as to who they could and could not employ; could they terminate now;  if so, on what grounds; are they open to a claim for redundancy; can John bring a claim for unfair or constructive dismissal.

If you are a small employer in a similar situation you may be surprised to find that your situation is not as bleak or oppressive as you think. But it will depend on the particular circumstances and a large factor in this type of situation is how long the employee has been in the employment.

Other questions to look at: is there a written contract, is there a probation period, has the employee obtained 12 months’ service? These are critical questions.

One of the biggest causes of stress is the fear of the unknown; any small employer can remove this fear by getting advice from a professional.

Getting advice from a professional will cost a few bob.

But not getting advice or getting it from an amateur is likely to cost more.