Use of CCTV Footage in Disciplinary Hearings
The crossover of data protection and employment law continues to be important when considering the use of CCTV in disciplinary processes.
Background
The case concerned a security incident arising out of disturbing graffiti being found on the property of the employer. The employer contacted the Gardaí, who recommended that the employer review CCTV footage to identify the perpetrator. During the CCTV review an employee, Mr. Doolin, was identified entering and exiting a tearoom at certain times, indicating that he was taking unauthorised breaks. A disciplinary process was initiated, and a sanction was issued.
Mr. Doolin complained to the Data Protection Commission (DPC) that his employer had unlawfully processed his personal data, as the employer’s CCTV policy indicated that the purpose of CCTV monitoring was for security and crime prevention and not disciplinary purposes.
The DPC dismissed the complaint, on the basis that the footage had only been processed once to investigate the graffiti incident, which was a security incident, and that the employer subsequently relied on Mr. Doolin’s admissions during the investigation.
The Circuit Court dismissed Mr. Doolin’s appeal of the DPC’s decision, observing that Mr. Doolin had admitted a breach of security and that disciplinary action was taken against him for security purposes.
The High Court overturned the Circuit Court decision, on the basis that there was no evidence that the disciplinary action was carried out for security purposes. The employer relied on the CCTV footage and a table was included in the investigation report that set out his times of entry and exit to the tearoom.
The decision of the Courts
It found that the processing was not for a related purpose and was incompatible with the specified purpose of security reasons. It noted that the original purpose of attempting to detect the perpetrator of offensive graffiti was irrelevant to the incidental monitoring of Mr. Doolin taking unauthorised breaks, there was no evidence that the taking of unauthorised breaks was a security issue. In this case, it was clear that Mr Doolin’s data was used for a purpose other than, and incompatible with, the specified purpose, and was therefore unlawful.
Conclusion
Employers should continue to follow best practice in the use of CCTV footage in the workplace by:
- Reviewing and updating their policy on a continuous basis
- Conducting a data protection impact assessment before deploying CCTV cameras in the workplace
- Deploying CCTV in areas of particular risk, and not where employees have a high expectation of privacy
- Clearly communicating the location of CCTV cameras
- Not as a matter of course capturing footage for one purpose and using it for another
- Clearly communicating to employees that footage captured may be used not only for security purposes but also the employee investigations and disciplinary proceedings
- Ensuring CCTV review is conducted in a manner that allows any subsequent issues to be dealt with in a manner compliant with natural justice; consider who will review the footage, and avoid overlap with those charged with conducting HR investigations.
Discrimination Case Law: Doherty v St John of God Community Services
St John of God was ordered to pay €45k for refusing to allow a pregnant employee to work remotely during the pandemic.
In this blog post, we will discuss the facts, and what employers should do to avoid any claims.
Facts
The employee, in this case, claimed that her inability to work from home during the Covid-19 outbreak and her role change constituted discrimination based on her family situation. She explained that she believed she was given no choice but to take sick leave. She was not given the same options as other parents or other pregnant women such as reduced hours, using zoom calls to contact service users as an alternative, and especially working from home.
She said in a conversation with her supervisor she was told that if she couldn’t work from home her only option was to take sick leave even though other staff in her department were allowed to work from home. Even after sending in her sick cert, she was asked to participate in Zoom calls, attend to phone calls and text messages and contact other staff. After this, she took ill, with stress and upset a factor, and had to be hospitalised.
In July 2020 a colleague contacted her about coming back to work, initially at a site that facilitated social distancing, but she was contacted being told she was being transferred to a more public-facing role which was not ideal for someone who is 30 weeks pregnant.
Note for Employers
Employers should establish clear policies and procedures to manage remote work. Policies should establish guidelines and expectations in order to ensure fair and consistent practices, as well as legal compliance when decisions are made based on the role’s suitability for remote work.
Bright Contracts has a Working from Home policy in the “Terms and Conditions” section of the Handbook.
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How to Prevent Discrimination in the Workplace
How to Prevent Discrimination in the Workplace
Workplace discrimination is based on certain prejudices and occurs when an employee is treated unfavourably because of gender, sexuality, race, religion, pregnancy, or disability. Discrimination generally falls into two principal categories, known as direct and indirect discrimination.
Direct Discrimination
Direct discrimination occurs when one individual receives less favourable treatment than another based on one or more of the nine grounds set out in the employment equality legislation. If a woman is paid less than a man to do the same job for no reason other than being a woman, this would represent direct discrimination.
Indirect Discrimination
Indirect discrimination occurs when neutral requirements unjustly disadvantage a certain category of persons. An example of this may be requiring candidates for a manual labour position to have fluent English. This would put Irish nationals in a better position to secure the position over foreign nationals.
Discrimination by Association
Discrimination by association occurs when a person is treated less favourably based on their association with a person protected by one of the nine grounds. If someone is experiencing harassment at work because they are in a relationship outside work with a foreign national this would represent discrimination by association.
Discrimination by Imputation
If an employee is incorrectly identified as belonging to one of the categories of a person described under the nine grounds and receives less favourable treatment than colleagues this will amount to discrimination by imputation. If it is incorrectly assumed that an employee has a certain religious belief and that employee is treated less favourably on this basis this will be discrimination by imputation.
It's important to know that discrimination is carried out by individuals. Your organisation is liable for any actions carried out by an employee in the course of their employment. It is important to take action to reduce the possibility that any discriminatory action occurs.
As part of the action plan to reduce the risk of discrimination occurring within your organisation, you should ensure that all employees:
- Understand that the organisation is committed to preventing all forms of discrimination
- Are aware of and understand their roles and responsibilities with respect to promoting equality and diversity
- Know how to seek advice and make a complaint in respect of discrimination
- Are confident that the employer will treat any complaint seriously and that it will be dealt with promptly and fairly
- Understand that any incident of discrimination will be viewed as a serious disciplinary matter
- Understand the types of behaviour that will be regarded as discrimination.
Providing Training
You should ensure that all managers and supervisors undertake training in ensuring that the workplace remains discrimination-free. Equality training should not be confined to management-level employees. Training, information and skills development in relation to equality should be provided to staff at all levels throughout the organisation. All such training should be structured so that it is accessible to all employees.
- You can communicate on equality issues through:
- Induction training
- Tailored in-house awareness training programmes
- Employee briefings
- Staff representatives
- Information on staff notice boards
- In-house magazine articles
- The staff handbook and policy manual
- Line manager and employee guides
It is important that there is action taken to ensure that discrimination is not in the workplace.
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Don't Get Caught Out: Maximum Award For The Employee Against Mandatory Retirement
The WHO?WHAT?WHERE? and WHY? Of The WRC
The WHO?WHAT?WHERE? and WHY? Of The WRC
The Workplace Relations Commission, or as they are more commonly referred to, the WRC, are a body which companies discuss in hushed tones as we associate them with discrimination cases but do we all know exactly WHO they are and WHAT they do besides being the deciding body on employment law cases? I don’t think many of us are sure, which is why our blog post will dive into the WHO?WHAT?WHERE? and WHY? Of The WRC.
Established on the 1st of October 2015, The Workplace Relations Commission (WRC) is an independent, statutory body which is Irish government-operated, which decides cases of alleged discrimination under Irish equality legislation. It was established under the Workplace Relations Act 2015 which reforms the State’s employment rights and industrial relations structures to deliver a better service for employers and employees.
Previously there were 5 separate bodies which dealt with complaints and disputes relating to industrial relations, employment law and employment equality but under the new system there are now 2 statutory bodies, namely The Workplace Relations Commission and the Labour Court. The Commission has a board consisting of a chairperson and 8 ordinary members appointed by the Minister for Enterprise, Trade and Employment.
The WRC provides information on employment law, equality and industrial relations to employees, employers and representative bodies of employees and employers. The function of the WRC is to provide advisory and conciliation services. Upon request, the Advisory Service engages with employers, employees and their representatives to help them to develop effective industrial relations practices, procedures and structures. This assistance could include reviewing or developing effective workplace procedures in areas such as grievance, discipline, communications and consultation.
Conciliation is a voluntary process where the parties to a dispute agree to avail of a neutral and impartial third party who will assist them in resolving their industrial relations differences. How the WRC assists in this situation is they will provide an Industrial Relations Officer to chair negotiations with the view of steering the discussions and exploring possible solutions in a non-prejudicial fashion. Solutions are reached only by consensus, hence the outcome is voluntary.
WRC inspectors visit workplaces and carry out inspections of employer’s records to ensure compliance with employment and equality legislation. An inspection may arise as a result of a complaint being received of alleged non-compliance, a campaign focussing on a specific sector or a particular piece of legislation, or it may simply be a routine inspection. Where breaches of legislation have been found, the inspector may, depending on the legislation involved, issue either a compliance notice or a fixed payment notice to the employer.
The WRC also has responsibility for:
• promoting the improvement of workplace relations, and maintenance of good workplace relations,
• promoting and encouraging compliance with relevant enactments,
• providing guidance in relation to compliance with codes of practice approved under Section 20 of the Workplace Relations Act 2015,
• conducting reviews of, and monitor developments as respects, workplace relations,
• conducting or commissioning research into matters pertaining to workplace relations,
• providing advice, information and the findings of research conducted by the Commission to joint labour committees and joint industrial councils,
• advising and apprising the Minister in relation to the application of, and compliance with, relevant enactments, and
• providing information to members of the public in relation to employment
Related Articles:
- Don't Get Caught Out: The 5 Core Terms
- Don't Get Caught Out: Maximum Award For The Employee Against Mandatory Retirement
Don't Get Caught Out: Maximum Award For The Employee Against Mandatory Retirement
Ensuring you are fully compliant with Irish employment law is a must when looking at ending an employees employment whether it be by termination or retirement. The following case is an example as to how not taking the right steps can lead to a huge cost for the employer.
The Case: Senior Staff Nurse Vs Nursing Home
The Complainant was employed as a senior staff nurse from the 10th May 2014 until the date of her compulsory retirement on the 28th October 2019, by the Respondent, a nursing home in liquidation. She received remuneration of approximately €5,883 per month gross. The Complainant sought an award of compensation in respect of discrimination suffered, loss of almost a year’s work and loss of redundancy payments before the Respondent closed and went into liquidation.
The Complainant was initially provided with a “Relief Panel Fixed Term Contract” requiring her to work ‘as required and when the need arises, varied hours up to 39 hours of a standard 39 hour week’. This included a retirement clause stating ‘Retirement age is 65 years. Employment beyond retirement age is exceptional and only by agreement of the employer.’ There were no further renewals of this contract, and it therefore effectively became a contract of indefinite duration. The Complainant was granted a one-year extension on her compulsory retirement, setting her new retirement date as the 31st of October 2019.
In July 2019, the Complainant entered discussions with Ms. A, who was the Clinical Nurse Manager and the Complainant’s line manager in regards to continuing her employment following the 31st of October 2019. Here, Ms, A. indicated her support for this and told the Complainant to apply for an extension in writing which she did, she did not receive a response. In absence of a response, the Complainant went straight to the Director of Nursing, Mr. B where he informed her that this would not be possible and that they would only have work for her until the end of October 2019. He also informed her verbally that there was a plan to recruit non-EEA national nurses to fill positions with the Respondent. Non-EEA national work visas can only be applied for by employers when no suitable EEA nationals were available to work in the same occupational category. The Complainant asserts that the Respondent did not offer any rationale or objective justification for their decision to terminate her employment.
On 25th October 2019, the Complainant received her final communication from Mr. B confirming that her last working day would be 28th October 2019. Non-EEA nurses were recruited in November 2019 and took over the Complainant’s duties. The Respondent operated for a further eleven months and was then subject to High Court Winding-Up Proceedings on the ground of insolvency. Some staff were redeployed nearby, others received statutory redundancy and approximately €3,000 ex gratia payment which the Complainant had been denied. She had received an excellent reference from Ms. A, which the Complainant asserts proves that she was dismissed based purely on age. The complaint was referred to the WRC on 28th February 2020 where noo evidence was provided in rebuttal of the complaint that the Respondent had acted unlawfully and in breach of the Employment Equality Acts on the ground of age.
Decision: The Adjudicator found that the only basis for the Complainant’s compulsory retirement was her date of birth, and that at the time she was provided with the Fixed Term Contract in 2018 upon her reaching the age of 65, no objective justification was given either verbally or in writing. The Adjudicator was satisfied that there was sufficient work available that the Complainant was fully capable of undertaking. The Respondent was ordered to pay the Complainant €85,000, being 2 years’ remuneration, in compensation for breaches of the Employment Equality Acts.
The takeaway of this case for employers is they should note that compulsory retirement must have an express valid reasoning and justification behind it, and that it is not exempt from being construed as discrimination on the basis of age.
Related Articles:
- Retirement in the Workplace: Is it enforceable?
WRC Annual Report 2017 – The Facts and Figures
The Work Place Relations Commission have published their third annual report, outlining the key performance metrics relating to complaints filed and decisions made across the employment realms.
One of the bigger achievements made by the WRC is a dramatic reduction in the length of time it takes to get a case to resolution. When the WRC was established in October 2015 it could take a case up to 2 years to secure an outcome whereas now, once submissions are received, it is taking less than 6 months.
Other Key Facts
• €1.8 million was recovered in unpaid wages; up €300,000 on the previous year
• 4750 workplace inspections were carried out, either announced or unannounced with over 99,000 employees covered by these inspections
• 14,001 complaints were received by WRC relating to:
- Pay – 27%
- Unfair Dismissal - 14%
- Discrimination and Equality - 11%
- Terms and Conditions of Employment – 8%
• Over 52,000 calls were received on the WRC information hotline, with just under half of these relating to employment permit queries.
• There were 4,370 adjudication hearing’s; up 24% on 2016
It is now almost three years since the formation of the WRC, and from the above figures it is clear that they are well into their stride and making significant inroads in terms of their objective of promoting the improvement of workplace relations, encouraging compliance with relevant employment and equality legislation. As such it is imperative that employer’s have the proper records in place in case of an inspection.
Solution
Bright Contracts allows the user to create and customise contracts of employment and company handbooks, this covers part of your obligation as an employer under current Employment Legislation.
To book a free online demo of Bright Contracts click here.
To download your free trial of Bright Contracts click here.
Is it discrimination to top up maternity pay but not paternity pay?
September 2016 saw the introduction of Paternity Leave, that for the first time ever allowed fathers/partners to take two weeks paid leave on the birth of a child / placement of a child for adoption. Paternity Leave is paid at the same rate as Maternity Pay, currently €235 per week*, leaving it up to employers to decide whether or not they wish to top-up pay during the two weeks leave. The question then arose that if by topping up maternity leave, would an employer by default have to top up paternity pay?
A recent Workplace Relations Commission (WRC) case involving a transport company, provides useful guidance on the answer to this question.
In this case a male employee brought a case under the Employment Equality Act claiming discrimination on the grounds of gender due to the fact that the employer topped up maternity pay but did not top up paternity pay.
However the WRC Adjudicator held in favour of the Company, stating that maternity leave is different to paternity leave and that “the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law”. The Adjudicator concluded that the employer was entitled to make special provisions for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts.
Conclusion
This case gives the green light to employers who wish to offer a maternity top up but not offer the same for paternity leave. Whatever it is you decide on, employers are advised to have clear paternity and maternity leave policies in place that is accessible to all employees.
*The rate of maternity/paternity pay will increase to €240 per week from end of March 2018.
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To download your free trial of Bright Contracts click here
€15k awarded in discrimination case to pregnant employee
The Labour Court found that the sacking of a manager from Wrights of Howth’s Crabby Jo’s restaurant was tainted with discrimination and have awarded compensation of €15,000.
Background
The employee was on a 6 month probationary period when she was fired just 3 months into her employment, very shortly after informing her bosses that she was pregnant.
No issues had been raised about the employee’s performance, however poor work performance was used as the reason for her dismissal on the 15th of June. The employee felt that the atmosphere had changed completely after she had announced her pregnancy on the 8th of May, she had requested a meeting to discuss her concerns she had over this. She was given no opportunity to make any representations or defend her position and was simply informed, without warning, that her employment was terminated.
In its ruling, the court found that no issues had previously been raised about the employee’s performance prior to her notifying them that she was pregnant and she had not been subject to any disciplinary warnings or action. The court originally awarded €30,000 for discrimination based on gender, however this decision was appealed and a lesser figure of €15,000 compensation was awarded due to the manner of the dismissal and the serious lacking in adherence to the restaurant’s own disciplinary procedures.
Learning points
It is important to recognise that disciplinary procedures must be followed at all times, regardless of how simple or difficult a situation may seem to be. It can end up being a very expensive mistake for an employer. Bright Contracts has comprehensive Disciplinary and Grievance procedures, customisable to companies requirements, built into the software.
€7,500 awarded for unfair interview questions
The Workplace Relations Commission has awarded €7,500 to a woman they found was discriminated against during a job interview with Minister of State for Training, Skills, Innovation, Research John Halligan. Mr. Halligan, during the course of the interview, said to the woman “I shouldn’t be asking you this, but....are you a married woman? Do you have children? How old are your children?”
Mr. Halligan said that the questions were asked in good faith as he wanted to make her aware that flexible working hours to allow his staff to take care of their families is something that he encourages. The WRC however, found that the questions were discriminatory under the Employment Equality Acts 1998-2005.
The legislation defines discrimination as treating one person in a less favourable way than another based on any of the following 9 grounds:
- Gender
- Civil Status
- Family Status
- Sexual Orientation
- Religion
- Age
- Disability
- Race
- Membership of the Traveller community
When conducting an interview it is important for employers to build rapport with the candidate but they also need aware that asking questions or making comments in relation to the above 9 grounds will leave you at risk of a hefty discriminatory claim, even if you think you are just making small talk.
So what questions are appropriate and inappropriate to ask in a job interview?
Appropriate Interview Questions
- Are you able to perform the specific duties of this position?
- What days can you work? What hours can you work?
- Are you available to work overtime on occasion?
- Are you available to travel on occasion?
- Are you able to start work at 8 am?
- What are your long-term career goals?
- Do you have any responsibilities that would interfere with traveling for us?
Inappropriate Interview Questions
- Do you have or plan to have children?
- If you get pregnant, will you continue to work, and will you come back after maternity leave?
- What are your child care arrangements?
- Are you married /engage?
- How many children do you have? Do you have a babysitter available if we need you on a weekend? Do the working hours fit with your childcare?
- Do you have a baby or small child at home?
Employment and equality legislation doesn’t just start once you hire someone, it’s applicable the moment you post a job advert. With this in mind employers need to be mindful of what they say even when making small talk and building rapport with candidates before and after the job interview.
To view our full Interviewing Guidelines click here
Also see our blog ‘Be careful of discrimination in job interviews’ here
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To download your free trial of Bright Contracts click here
How to avoid harassment in the workplace
The recent allegations against Harvey Weinstein n the US have created somewhat of a snowball effect worldwide with thousands of women and men speaking out about their accounts of sexual harassment and assault, many of them being work related. Allegations involving high profile individuals and people in authority have demonstrated just how widespread a problem this has become across all industries and professions and has exposed a sinister culture of silence, fear and acceptance which we must now turn on its head.
The Employment Equality Acts clearly defines sexual harassment as: forms of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
It is important for employers to ensure that harassment will not be tolerated and to portray this to their employees and clients. Employers are therefore compelled to take steps to ensure a harassment-free work environment. Effectively, organisations must set down clearly defined procedures to deal with all forms of harassment including sexual harassment.
There are a number of steps an employer can take to help prevent this type of behavior from occurring in the workplace:
A Bullying and Harassment policy
- to protect the dignity of employees and to encourage respect in the workplace
An Equal Opportunities policy
- to create a workplace which provides for Equal Opportunities for all staff
A Whistle-blowing policy
- to enable staff to voice concerns in a responsible and effective manner.
Transparent and fair procedures throughout
Disciplinary action
- A sanction that is appropriate for the level of alleged harassment – to help try and change the culture of silence that has allowed harassment to become normal and protected.
Provision of on-going training
- At all levels within organisation
Bright Contracts has a fully customisable Staff Handbook, which includes a Bullying and Harassment Policy and also an Equality Policy and Whistleblowing Policy.
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