Employee Surveillance – Is It Legal?

While it may be a controversial issue amongst staff members, workplace monitoring is a legitimate and legal method that employers can implement to protect their staff and business. Permitted methods of surveillance include maintaining CCTV systems, monitoring internet browsing history, inspecting email traffic, listening in on telephone calls or conducting employee bag searches.

If implemented correctly, effective systems which monitor employee activity can help safeguard against harmful work practices and encourage higher levels of productivity within an organisation. Employers must be mindful that any such monitoring activity should be proportional to the employment risks requiring surveillance.

Recent Workplace Relations Commission case involving covert surveillance

The Workplace Relations Commission (WRC) was recently required to consider whether the use of data recorded on covert surveillance equipment could be relied on as evidence to dismiss an employee. The case concerned an employee who was a driver for a waste collection company.

The employer had concerns about the fuel usage of the employee and installed a camera on the truck which recorded use of the fuel tank only. The video evidence revealed that the employee had siphoned fuel from the truck at his home on a number of occasions.

The employer referred the matter to the Gardaí and carried out an extensive investigation and disciplinary procedure before dismissing the employee on the basis of the recorded misconduct.

WRC ruling

In its ruling on the lawfulness of the dismissal, the WRC stated that there are certain instances, albeit narrow, when covert surveillance may be justified where the behaviour of the employee, if proven, may be an offence. The court relied on a precedent approved by the Data Protection Commissioner which stated that “the use of recording mechanisms to obtain data without an individual’s knowledge is generally unlawful. Such covert surveillance is normally only permitted on a case by case basis where the data is gathered for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders”.

As the video surveillance of the fuel tank was not general in nature and was not the sole basis upon which the employer made its decision to dismiss, the use of the video evidence did not render the dismissal unfair.

Engaging private investigators

Though not referred to in the most recent case, the use of a private investigator by an employer has also been deemed to be lawful in circumstances where it is not central to the case against an employee. Employers enjoy discretion to contract the services of a private investigator to monitor an employee who is suspected of fraud or workplace misconduct.

Each case will be reviewed on its own facts but it is clear that the discretional use of a private investigator will not invalidate a dismissal if the surveillance is required in the context of fraud or gross misconduct and the evidence gathered by the private investigator is not the sole basis for the employer’s decision to dismiss.

Data protection considerations

Case law further confirms that monitoring staff through the use of CCTV systems will not breach an employee’s right to privacy or the rights of employees as data subjects under data protection legislation provided that the CCTV policy is clearly communicated to employees and the data is processed in accordance with data protection legislation to include compliance with GDPR.

The case for employee surveillance

By keeping a closer eye on employee emails, internet browser history and access locations, employers are better positioned to evaluate if employees are acting in inappropriately and to take any appropriate action.

Electronic monitoring has also been shown to be effective when it is for a clearly-defined and well-explained purpose that is targeted at specific measures of performance. Surveillance initiatives that are combined with clear performance management frameworks, employee compensation and benefits, can promote increased levels of productivity.

The key for employers is to ensure they approach such initiatives in an open and fair manner that do not make employees feel as though they are constantly being watched. Studies have shown that the more employees feel their privacy is violated, the more dissatisfied they become with their role.

Avoid overreliance on surveillance

Excessive reliance on surveillance data can result in the setting of unfair targets and take away autonomy, which will have additional negative implications on employee morale. Employees may even respond by trying to subvert surveillance systems, creating further employment issues rather than preventing them.

Be open on the need for surveillance

While employers are legally authorised to monitor employees through various methods, it is prudent to implement these systems in an open, fair and lawful manner. It is also recommended that employers consider if surveillance is in fact, necessary and ensure that appropriate steps are taken to establish that any monitoring methods are proportionate to the risks involved.

Best practice employers discuss and agree workplace monitoring policies with their staff rather than unilaterally impose them.

If you have any queries on the topics covered in this article, please call our advice service on 1890 253 369

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Nora Cashe

Peninsula

Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

Nora has extensive experience representing clients at Employment Tribunal hearings, Conciliation / Mediation meetings before both the Workplace Relations Commission and the Labour Court. 

Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

Deiric McCann

Genos International Europe

Deiric McCann leads Genos International Europe – The EU division of a world-leading provider of emotional intelligence solutions. 

With over two decades experience at the highest levels of management, Deiric supports clients to develop the resilience, emotional intelligence, psychological safety and engagements of their employees.

Rhiannon Coyne

Graphite HRM

Rhiannon Coyne is a Senior HR Consultant at Graphite HRM and will be providing an overview of best practice on how to deal with complaints of bullying and harassment in the workplace. 

With a number of recent updates to employment laws, Rhiannon will take a closer look at employment equality and how it is interlinked to Health & Safety and what employers can learn from recent case laws.

David Begg

Workplace Relations Commission

David Begg was appointed Chairperson of the Workplace Relations Commission (WRC) in January 2021.

David is also a professor at Maynooth University Institute of Social Sciences. Mr Begg’s extensive history in the trade union movement included leading the ESB Officers Association and Irish Congress of Trade Unions, stepping away from the latter in 2001 to chair international aid agency Concern.

David Begg was also previously a director of the Central Bank of Ireland between 1995 and 2010.