Covert Surveillance of Employees

Hidden cameras in the workplace

An integral element of the employment relationship is the presence of trust and confidence between the employer and the employee. If that trust and confidence is irrevocably broken, either party may be compelled to terminate the relationship.

In the case of A Dental Technician -v- A Dental Practice (ADJ00012025), the employee, a dental technician, discovered that she was being recorded while at work by a hidden camera pointed at her desk. When she discovered the hidden camera, she was physically upset and went on sick leave. She subsequently brought her concerns to the attention of her employer who made light of the incident. That being the case, the employee resigned her role and brought a claim of unfair dismissal by way of constructive dismissal (complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977).

Resigning when discovering hidden camera

The question for the Adjudication Officer in this matter is whether it was fair and reasonable for the employee to terminate her employment on the discovery that she had been secretly recorded by her employers? The employee argued that her employer did not act reasonably in engaging in clandestine surveillance of her. She contended that the monitoring of employees addressed by the Data Protection Commission and Article 29 Working Party (WP55) which specifically requires the disclosure by an employer of any surveillance of employees. 

The employee contended that the conduct of the employer in this regard is relevant in assessing the legitimacy of the deployment of any surveillance cameras. The fact that only one party knew the existence and operation of the camera, that it was facing the employee, that it was hidden and that the parties were in contact during the relevant period and yet the employer failed to disclose the existence of the camera, were circumstances justifying her terminating her own employment.

Unfair dismissal and covert surveillance

The employee held that Section 1 of the Unfair Dismissals Act, 1977, envisages two circumstances in which a resignation would be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and, in such circumstances, the employee would be entitled to resign their position. This is often referred to as the “contract test”. This requires that the employer be guilty of such conduct which goes to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the employment contract. The employee thereafter is entitled to consider themselves discharged from any further performance.

Reasons for installing hidden camera at work

In addition, there is a requirement on an employee to exhaust the internal grievance procedure, before terminating their employment. The employer argued that the surveillance camera was installed for the employee’s safety. The employer noted that he was nervous about this employee being on her own on the premises. However, the Adjudication Officer noted that this explanation did not sit easily with her and there had been a total absence of any reference to questions in relation to intruders or any strange occurrences. The Adjudication Officer noted that the camera was directly pointed on the employee and not at the entrance. If the purpose of the camera was to detect the comings and goings of people as the employer stated, why was it not trained on the entrance? The Adjudication Officer went on to note:

“The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

This reference to the employer’s conduct is understood to represent something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

As no adequate reason was supplied as to why the device, intended for the complainant’s protection needed to be concealed, I cannot accept that it was merely there to protect the complainant. I find that the employer’s actions, though a once off, were sufficiently damaging to the relationship of trust to which both parties are entitled. I consider the respondent’s actions in intending to operate a concealed surveillance system amounts to a breach of the implied term of trust and confidence. I find that there has been a fundamental or repudiatory breach going to the root of the contract, entitling the complainant to resign and claim constructive dismissal. I find that the complainant was justified in her resignation and it meets the tests set out in the above mentioned authorities.

In the circumstances, the decision not to use the grievance procedure does not undermine the complainant’s complaint.”

Conclusion 

As a consequence of this breach of trust and confidence, the Adjudication Officer found that the employee was entitled to end the employment relationship. The employee was awarded compensation to the sum of €5,000.

Further Information

For further information, please contact the author of this article, Barry Crushell.