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.
SSP to come into effect in January 2023
According to Tánaiste Leo Varadkar, the statutory sick pay scheme will go into effect on 1 January 2023. As per our previous blog post the Sick Leave Act will establish an entitlement for all employees to sick leave paid by their employer in addition to illness benefits from the state.
Workers will be entitled to three days of paid sick leave in the first year of operation, increasing to five days in year two, seven days in year three, and ten days in year four. Employers will pay sick pay at a rate of 70% of an employee's wage, up to a daily maximum of €110. The law was passed in July but it will not take effect until the new year.
What actions should employers take now?
if your employment contracts already include paid sick leave provisions, you’ll need to review the agreements in line with the new legislation.
An employer who offers a sick leave scheme to employees with more favourable conditions than the terms of the statutory scheme is not subject to additional obligations under the Act.
You can watch our most recent webinar “2022 Legislation Changes” where our expert Jennifer discusses the legislation or read our previous blog post: Preparing for New Sick Pay Rules
Termination of Employment
An employer must have a reason to dismiss an employee. Under the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee is deemed not to be unfair if it is for reasons of capability, conduct, capacity, redundancy, contravening the law, or some other substantial reason.
Giving Notice
At a minimum, employers must give employees the following statutory periods of notice.
Duration of employment Minimum notice
- 13 weeks to 2 years -1 week
- 2 to 5 years -2 weeks
- 5 to 10 years -4 weeks
- 10 to 15 years-6 weeks
- 15 years or more -8 weeks
If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be given.
An employer may dismiss an employee without notice for gross misconduct e.g assault, stealing or serious breach of employment policies. Employment contracts or handbooks may contain further examples of gross misconduct.
Termination Procedures
The Workplace Relations Commission has introduced a Code of Practice on Grievance and Disciplinary Procedures which employers should follow when dismissing an employee. Disciplinary action may include:
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Demotion
- Some other appropriate disciplinary action short of dismissal
- Dismissal
You can read more about Unfair Dismissal in our previous blog post, Unfair Dismissal Claims & How to Avoid Them
Bright Contracts Software has a “Resignation and Termination” policy in the “Terms and Conditions” section of the handbook. Furthermore, in the Company Policies and Procedures section, there is a Grievance/Dispute Procedures which you can edit to your company needs.
WRC Inspections: What you need to know
WRC inspectors carry out employment rights compliance inspections and associated enquires. In general, an employer will get advance notice of an inspection. In some instances, an inspector has the right to show up unannounced.
Inspectors have the following powers:
- To inspect and take copies of any documents or records
- To remove any books, documents, or records and retain them for such period as the inspector considers necessary for the purposes or their functions under the Workplace Relations Act 2015
- To require any person at the place of work or premises to produce such books, records or documents as the inspector may require for the purposes of their functions under this Act
- To examine any person who they believe to be or have been an employer or employee, and to require such person to answer questions as the inspector may ask relating to the employment.
Preparing for an inspection
Employers should always be prepared for a WRC inspection as these may happen at any stage.
Employers Checklist:
- Employers’ registration number with Revenue Commissioners
- A list of all employees: full names, addresses, and PPS numbers
- Dates of commencement and dates of termination of employment
- Written terms of employment for each of the employees
- Employee’s job classification
- A record of annual leave and Public Holidays took by each employee
- Hours of work for each employee (start and finish time)
- Payroll details: gross to net, rate per hour, overtime, deductions, commission, bonuses, service charges, etc.
- Evidence that Employees were provided with pay slips
- A register of any employees under 18 years of age
- Details of any board and lodgings provided
- Employment permits or evidence that permit is not required as appropriate for non-EEA nationals
The Inspection
Reasons:
- Response to alleged non-compliance
- WRC compliance campaigns- sector/legislation specific
- Routine inspections
Conduction of the inspection
The inspection will carry out an interview with the Employer or their representative. At this stage, all relevant records will be requested, calculated, and examined.
After examining the records, the inspector will interview a sample of employees to gather additional information. These findings will be shared with the employer.
If it appears that all is compliant, the inspector will issue a letter concluding the inspection.
Examining the records
Accurate records can protect employers from false allegations
The inspector will examine a sample of records over a period of one year prior to the examination. They will then determine if they should examine further records within the previous years from what they see in the first records.
Examples of inspection Offences
- Failure to pay the National Minimum Wage rate
- Failure to keep employment records for a period of 3 years
- Failure to give a statement of wages (e.g. payslip)
- Employing a person who is not an EEA or Swiss national without a valid employment permit or other valid permission to work.
Related Articles
The WHO?WHAT?WHERE? and WHY? Of The WRC
Effective Absence Management
One of your employees calling in sick or saying they can’t make it into work but not giving a reason as to why can be frustrating and disruptive.
The best thing to do to manage this is to have an absence policy in place. The policy should outline how sickness-related-absences will be dealt with and should specify what period of time forms:
• Short-term absence
• Long-term absence
• Unauthorized absence
Your absence policy should be shared with your employees. Doing this will ensure that employees know how each instance of absence will be handled and what procedure will be followed.
Furthermore, having an absence policy in place will ensure consistency.
How to reduce sickness absence in the workplace
Return to work interview
One of the easiest ways to reduce sickness absence is to conduct a return to work interview. This conversation will bring to light any issues an employee has, whether it’s personal work or work-related. It could mean that you alter their working hours, allow them to work from home, or take time off for medical appointments.
Record Keeping
Record keeping is another useful practice. Tracking employee absences can be very beneficial to see what patterns may appear with the absence of an employee. For example, does one of your employees always miss the Friday of a Bank Holiday? Or say they’re unwell the Monday they’re due in after a week off?
Monitoring absences will make these patterns easier to spot and gives you proof if you need to speak to the employee.
Communication
Whether it’s a short or long-term absence, it’s important that you reach out to the absent individual. You can do so by phone, email, and in some cases, a home visit. Reaching out, it will give you an insight into their illness and how long they think they will be absent. It will also help you prepare for their return.
Dismissal due to sickness absence
In extreme cases, such as long-term sickness, dismissal for absence may be considered.
If you decided to go down the dismissal route, you’ll need to show that the procedure used was fair and reasonable. Failure to follow fair procedures may leave your company open to a claim for unfair dismissal.
Bright Contracts Handbook contains an absence policy in the “Terms & Conditions” section of the handbook.
Related Articles
Mental Well-being in the workplace
The Importance of HR Policies & Procedures
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.
Related Articles:
How to Prevent Discrimination in the Workplace
New Worker’s rights passed by the Oireachtas
Over the last few weeks, The Oireachtas has approved two new workers’ rights: sick pay and tip protection. Both of these will have a significant impact on millions of workers nationwide.
Sick Pay for eligible employees
As discussed in a previous blog post: Preparing for New Sick Pay Rules. The Sick Leave Bill 2022 has been passed by both Houses of the Oireachtas. This gives eligible employees in Ireland the right to paid sick leave. Employers will pay sick pay at a rate of 70% of an employee's wage, up to a daily maximum of €110.
To receive statutory sick pay, an employee must obtain a medical certificate and have worked for their employer for a minimum of 13 weeks. Employees who require further time off after their employer’s entitlement to sick pay expires may be eligible for illness benefits from the Department of Social Protection, subject to PRSI contributions. The Bill has now been signed into law by the president.
The Payment of Wages (Amendment) (Tips and Gratuities) Bill
In addition to passing the Sick Leave Bill 2022, the Oireachtas passed new legislation to ensure those working in the hospitality industry receive their fair share of tips and gratuities. This will clarify the definitions of required charges, service charges, tips, and gratuities. In addition, it will exclude tips and gratuities from a worker’s contractual wages, and oblige employers to distribute tips received electronically, fairly, equitably, and in a transparent manner. It will also ensure that any charge referred to as a ‘service charge’ is distributed to employees in the same way as tips received.
Employers should begin reviewing their sick leave policies to ensure that they comply with the upcoming statutory sick leave scheme. Employers in relevant industries should also review their policies and procedures for managing tips, gratuities, and service charges to ensure they are in line with the changes in the law.
How to Prepare an Anti-Bullying Policy
Prevention is the best way to avoid the risk of bullying at work. The purpose of an effective policy is not simply to prevent improper conduct and behaviour but also to encourage best practices and a safe and harmless workplace where such behaviour is unlikely to occur.
Employers should adopt, monitor, and implement an effective and accessible policy on bullying in the workplace.
Preparing the Policy
The policy and complaints procedure should be adopted, where appropriate. Simple direct language should be used in the policy. Information given to employees should be in a form, manner and in an appropriate language that is likely to be understood by the employees concerned.
The policy should be written, dated, and signed by a responsible person in senior management and updated when appropriate.
Scope of the Policy
The policy should:
- Describe what is meant by bullying at work
- Include a non-exhaustive list of examples of bullying behaviour relevant to the employment
- Given the name or job title of the person who may be approached by a person wishing to complain of bullying at work
- State that the protection extends to bullying at work by management, fellow employees, subordinates, clients, customers, and other business contacts as well as work-related social events
- State that all complaints of bullying will be taken seriously and will be followed through to resolution and that employees who make a complaint will not be victimised.
Allocation of Responsibilities in Prevention of Bullying at Work
The policy should state that management, others in the position of authority, and workplace representatives have a particular responsibility to ensure that bullying at work does not occur and that complaints are addressed promptly.
The policy should state that, management will:
- Provide a good example by treating all people in the workplace with respect
- Promote awareness of the policy and complaints procedures
- Be vigilant for signs of bullying at work through observation and through seeking employee feedback and take action before a problem escalates
- Deal sensitively with employees involved in a bullying complaint
- Explain the procedures to be followed if a complaint of bullying at work is made
- Ensure that an employee making a complaint is not victimised for doing so
- Monitor and follow up on the situation after a complaint is made so that the bullying at work does not reoccur.
Bright Contracts has a preformatted Anti-Bullying Policy under the ‘Bullying and Harassment Policy and Procedure' section of the Handbook in the software, which is fully compliant with current employment laws.
Related Articles:
Bullying in the Workplace: What you need to know
Bullying in the Workplace: What constitutes as bullying?
What You Need to Know About Staff Handbooks
Bullying in the Workplace: What you need to know
We have already discussed in a previous blog post Bullying in the Workplace: What constitutes bullying? What bullying is and what constitutes bullying. In this post we are going to discuss the effects bullying have at work, the role of the employer and the employee to prevent bullying at work and actions and measures you can take to tackle bullying.
The effects of Bullying at Work
Workplace bullying and related complaints can have a range of effects on both employees and employers. For the employer, the effects can include reputation damage, absences of employees in the workplace, reduced productivity, increased costs, poor morale, and loss of respect for managers and supervisors.
For the employee or the target of bullying behaviour, the effects can include stress, low morale, reduced performance, and lower productivity. Some people decide to leave their employment, exposing themselves to financial strains.
Prevention of Bullying at Work- Role of Employer
Every person in the workplace has a role in promoting a positive workplace free from bullying behaviour.
An employer should:
- Uphold the duty to manage and conduct work activities in such a way as to prevent any improper conduct or behaviour that is likely to risk an employee’s safety, health or welfare at work. Employers must act reasonably to prevent workplace bullying patterns developing, where there is a complaint, the employer must react reasonably, assess the complaint, and record actions on each case.
- Develop a workplace anti-bullying policy, in consultation with employees, to ensure a system is in place for dealing with complaints and that disciplinary action may follow where bullying has occurred.
Prevention of Bullying at Work- Role of Employee
How an employee behaves in a way that is acceptable. Employees both individually and within teams and groups, have a role in promoting positive behaviour to others, relating in a clear, civil and respectful way to everyone in the workplace.
Under section 13 of the 2005 Act employees’ duties include to:
- Comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect their safety, health and welfare of any other person who may be affected by the employee’s acts
- Co-operate with their employer or any other person so far as is necessary to enable their employer or any other person to comply with the relevant statutory provisions.
- Not engage in other behaviour that is likely to endanger a person’s own safety, or their health and welfare at work or any other person at work during the course of the employment.
Measures to Prevent Bullying in the Workplace
- Promotion and reinforcement of a positive workplace culture
- Effective Anti-Bullying policies, to be used and promoted in the workplace
- Widespread policy awareness
- Appropriate training as required for those managing complaints and for line management
- Contact person/appropriate support available
There may be value in appointing a Contact Person who acts as the first step for anyone enquiring about a possible bullying case. Where the organization can support this, it can help to resolve matters earlier and more effectively.
The Contact Person should be supportive and listen and offer guidance in line with company policy and procedures all on a confidential basis. This person should be carefully selected and trained. The main purpose of this role is to be supportive, they will have no role in the investigation of any complaints and should not be tasked with any further involvement in the details or right and wrongs of a complaint.
Related Articles:
Bullying in the Workplace: What constitutes as bullying?
What You Need to Know About Staff Handbooks
The Importance of HR Policies & Procedures
HR Policies are formal rules and guidance for managers and employees setting out how to manage a range of employment issues in the workplace.
A policy is a guiding principle used to set direction in an organization. It should be used as a guide to decision making under a given set of circumstances within the framework of objectives set out by senior management
A procedure is a particular way of accomplishing something. It should be designed as a set of series of steps to be followed as a consistent and repetitive approach or cycle to accomplish an end result
Purposes of HR Policies and Procedures
HR policies and procedures give guidance on a range of employment issues for employees, managers and others with responsibility for people.
They:
- Set clear standards and expectations and creates awareness
- Transparently communicates the conditions of employment
- Ensures employees are treated equally and fairly
- Creates a safe and healthy work environment
- Creates a channel for addressing employee grievances and disputes
- Mitigate risks
How to communicate HR Policies
- Must be issued to all employees
- Must be in writing (company handbook)
- Employees must be informed of policies on commencement of employment
- Employees must sign off on policies
- Policies must be accessible and reviewed frequently
- Managers must be coached and sufficiently trained.
Rather than incorporating policies into the contract, you may consider;
- Referring to the policies and procedures and where they can be found
- Confirm that they don’t form part of the employee’s contract of employment
Essential Policies
- Some essential policies that should be included are:
- Disciplinary
- Grievance
- Dignity in the workplace (Bullying, Harassment, etc)
- Equal Opportunities
- Health and Safety Policy
- Retirement Policy
- Right to Disconnect
- Whistleblowing Policy
- Probation Policy
- Absence Policy
- Data Protection
- Confidentiality
- Hybrid Working
- Flexible Work
In order to build a good company, it is essential for employees to be able to work together peacefully. Having a proper set of policies and procedures in place can make this happen.
Bright Contracts handbook provides all the policies and procedures any SME would need. It allows you to edit the text to suit your company’s needs.
Related Articles:
What You Need to Know About Staff Handbooks
Time Saving With Bright Contracts
