D. Cases

This case relates to covert surveillance undertaken by the Respondent Organisation in relation to suspected misuse of the Organisations value club scheme. Following an audit of the system anomalies were identified in relation to use of club cards in one particular store, where the Claimant worked. The Store Manager was given a card number and asked to investigate. From CCTV footage the Claimant was identified as working on the terminal when excessive use of the clubcard was being carried out. It was 5 weeks before the Store Manager and HR Manager were in a position to meet with the Claimant.  

On 25th May 2009 the Store Manager met the Claimant and told her he had been investigating value club transactions and asked her to attend a meeting about 20 minutes later, the Claimant was presented with stills on different dates and the Claimant did not deny that she was working on those particular dates. On conclusion of the meeting she was suspended with pay, and asked to attend a further meeting on28th May, the Claimant apologised at this meeting The Store Manager felt that due to a breach of trust and believed he had no option but to terminate the Claimant’s employment with immediate effect.  

The Claimant had no idea what the meeting on the 25th of May was about, and advised that Customers always gave her permission to accept their points and it had never occurred to her she was doing anything wrong in accepting these points.  The Claimant advised she was fully aware of other staff members doing this. The Claimant appealed the decision to dismiss, and was not invited to attend an appeal hearing.  

The Tribunal found that the Organisation, having discovered irregular use of a card, had conducted a covert operation involving CCTV footage studies and analysis of till receipts. The Tribunal found that it was open to the Organisation at this point to alert Employees that inappropriate use of value club cards would not be condoned and remind Employee of the Handbook statements in this regard. The Tribunal found that dismissal for gross misconduct was not an appropriate and proportionate response in all the circumstances. The Tribunal found the Claimant was unfairly dismissed and awarded her €24,000 and €2,190, being the equivalent of 6 weeks’ notice.  

This case highlights to Organisations the importance of following fair procedures whilst operating surveillance of Employees, the Tribunal in this case found it unfair that the Organisation allowed the process to continue without reminding Employees of the policy. Organisations must ensure that Employees are aware of unacceptable practices and not continue to monitor Employees without highlighting these.  

UD1355 - Patricia Heffernan v Dunnes Stores - Covert Surveillance of Employees

This case relates to the Respondent Organisation finding a large discrepancy of 17 MP3 players in their distribution centre. When a discrepancy arises the loss prevention team examines who was at the location at the time, using data from the scanning device which each Employee receives at the beginning of their shift. The Appellant in this case was not required to stop at where the MP3s went missing, however she did. The Appellant was interviewed and asked why she was at the wrong location, the Appellant advised she was talking to the hygiene guy. An investigation outcome meeting was held with the Appellant on the 21st July, and on 16th August the Respondent issued a letter advising her she was dismissed. Nobody had actually seen the Appellant take anything, but it was felt that she was involved. The Claimant was not advised during the investigation that the incident could lead to dismissal.  

The Claimant confirmed she was in the wrong location as was shown on the CCTV footage, however stated that a wrong location is only shown once you scan a product. She went to the right corner but scanned the wrong product. At the first meeting an empty box was put in front of her but all the questions were relating to why she was in the wrong are. The Claimant advised that it was never put to her that she had stolen the product and she was never asked if she helped anybody to steal them. The CCTV footage was not probative of the Claimants suspected role, however the Respondent was convinced that she was present at the location in question with an improper purpose.  

The Tribunal found that the evidence against the Claimant was circumstantial and inconclusive and there were a number of other deficiencies in the Organisational procedures. The Tribunal found the dismissal to be unfair, but the Claimant contributed significantly to the circumstances which led to her dismissal. The Claimant was awarded €1,000.  

This case highlights to Organisations the need for CCTV footage when used in a disciplinary investigation, or any other method of Employee surveillance, to be irrefutable and not allow for any shadow of doubt in particular in a case where dismissal may be an outcome. Organisations must also have a policy in place with regards to the use of CCTV in investigations.

UD1514 - Employee v Employer - Use of CCTV Footage in Investigations

This case relates to a claim by Ms Oksana Shaskova that she was subjected to discrimnatory treatment, discriminatory dismissal and harassment by the Respondent Organisation on grounds of gender and race. The Complainant was selected for redundancy which she questioned and asked for further detail as to why her role was being made redundant. The Complainant submitted that the Respondnet used CCTV and that this amounted to harassment, and submitted that use of CCTV in the manner which the Respondent used it would not have been accpetable to an Irish national. The Complainant submitted that the installing of a covert CCTV camera is a form of harassment that places a female Employee in an extremely vulnerable position. The Complainant also submitted that where a foreign national is having their employment terminated, the Employer has a positive duty t ensure that the Employee fully understands the issues, is given the opportunity to mount a defence and has a right of representation, which was not done in this case.  

The Respondent denied that there was a hidden camera watching the Appellant and submitted that there is a sign on the gate to its premises indicating that there are CCTV camera throughout the premises. The Equality Officer found that in relation to the use of CCTV that the office was staffed by a mixture of nationalities and genders, and no-one of a particular gender was targeted by the use of CCTV. The Equality Officer in this case was not satisfied that harassment occurred on the grounds of gender because there was CCTV surveillance in operation.  

It was found that the Complainant was discriminated on the grounds of race in selection for her dismissal, however no link was established between the unfavourable treatment received by the Complainant and the gender ground.   This case highlights the importance for Organisations to advise all Employees and visitors to their premises that CCTV surveillance is in operation, for a specified purpose.

E011 - Oksana Shaskova v Goode Concrete Ltd - Use of CCTV amounting to Harassment