Our monthly Employment Law at 11 webinar with Seamus McGranaghan Director at O'Reilly Stewart Solicitors returns and today Seamus is joined by Christine Quinn from the Legal Island Learning and Development Team. 

Being covered at todays' webinar, Christine and Seamus will discuss:

• Staff shortages, the recruitment crisis and the "great resignation" – how to stand out from the crowd, how to recruit and retain talent in challenging times.
• Surveillance in the workplace – Can we do it? Should we do it? And is it legal?

The Legal Island webinars are sponsored by MCS Group - more information on MCS can be found at www.mcsgroup.com

To view the webinar recording and transcript make sure you are signed into the Legal Island hub.

Transcript

Christine: Good morning, everybody. Welcome back to "Employment Law at 11". So today, we're talking about the Great Resignation, staff shortages and recruitment issues, and we're also going to be talking about surveillance in the workplace.

But first things first, let me introduce us. I am Christine Quinn. I'm one of the Learning and Development Officers here at Legal-Island. A qualified employment solicitor, so very interested in all of this stuff. We've got Seamus, our regular contributor, Seamus McGranaghan of O'Reilly Stewart Solicitors, an employment law expert.

So a few bits of housekeeping just before we get started. There is . . . just wait a bit for the next slide there . . . a special offer for you guys especially for attending the webinar today, Data Protection in the Workplace eLearning Course. It's always good to keep on top of that. It's one of those things that can you can let slide, but it really is very important. So you've got a 50% discount there. More details are in the post-webinar email, so have a lookout for that.

Now, we have some polls just to kick us off and get you started. So if you can click on your voting buttons and let us know what you think of the following.

Polls

The first poll is, "Are you recruiting for posts at present?" So select yes or no there. Okay, wow. I think that's about it. I think we've got a fairly definitive response there, and I think that's exactly what we had suspected, Seamus, isn't it?

Seamus: Yeah, it seems to the position. I remember that we did a webinar not so long ago. It could be 12 months ago at this point, Christine. I don't know. But we did a webinar with a recruitment consultant from Honeycomb a lot of months back and we were flagging up the issues that were coming around as a result of the pandemic and movements and things like that that were happening.

But certainly, from clients that I speak to on a regular basis, this is the problem that they have, is staff shortages. It's a lot of movement happening in relation to people leaving roles, moving to competitors, but also employees moving on to completely different pathways in relation to careers as well, and there are difficulties in replacing those members of staff. That's clear at the minute.

And everybody is seeming to be competing at the minute for recruitment, which is, helpfully for employees, driving up the salaries and the benefits and things like that as well. So definitely things have tipped in the balance in the favour of the employee at the minute.

I think certainly that everyone is finding it a bit of a struggle at the minute in terms of making sure that the business can still operate and run efficiently, and maybe even if there's a reduction of staff members.

Christine: Yeah, I think I was expecting a yes but not quite as big a yes, I have to say. But that's encouraging that we're talking about something that's relevant anyway.

Let's have a look at the next poll then. So second question for you guys. "Have you had a lot of resignations at the end of lockdown?" I think, after the last answer, we know what this is going to be. So we've got "No, no one has resigned at all", "Yes, a couple of people have resigned", or "Yes, there's been a mass exodus". So let's see what you've got to say on this one.

Okay, I can see that slowing down now, so I think everybody has voted. Let's have a look at those results then, Katie, please. Bang in the middle, then, we've got 63% "Yes, a couple of people have resigned". There is 23% saying a mass exodus. I think, again, Seamus, very much what we were expecting or hoping.

Seamus: Yeah, it's reflective actually of what media are saying in relation to the recruitment and retention process. It will vary, I would imagine, from industry to industry and from business to business. But even with that, 23%, almost a quarter, in relation to what's described as a mass exodus, I mean, it's shockingly high.

Christine: Yeah, it is. When you put it in those terms, it really is. Yeah, a quarter of people up and left. Yeah, it is shocking.

Okay, let's have a look at our final poll question then, just on our surveillance-type topic. "Have you implemented new systems to monitor employees working from home?" If you could click yes or no to that.

I'm not quite sure what I'm expecting from this. I'm hoping there's a lot of trust out there for employees. Okay, let's have a look at those results then. Yes, I got what I hoped for there. Eight-six per cent are no. Were you expecting that, Seamus, or were you thinking people were more suspicious?

Seamus: Yeah, I was expecting it to be a little bit higher on the no front. It could be as well that there is monitoring going on, but maybe employers don't see it as monitoring as well. And maybe when we get into that side of the discussion this morning, it's worthwhile mentioning those sort of standard things that we all do but legally will be seen as monitoring employees.

I mean, given the working-from-home aspect, there still has to be an element where an employer has to see the productivity. And maybe that isn't something that's measured, but I would imagine that there's still a close eye being kept on making sure that people are doing their jobs and their work from home whenever they're maybe not under supervision as they would be in the office.

Christine: Yeah, there's a fine line really between supervision and surveillance, I suppose. And we'll get into that a wee bit later on. Brilliant. So thank you very much, everyone, for getting involved with that.

Recruitment and Retention

Let's kick off then. Let's get into our webinar and look at the agenda for today. So we've got our staff shortages, the recruitment crisis, and the Great Resignation. We'll be looking at how to stand out from the crowd, recruit, and retain talent in challenging times. And then we'll move on to our surveillance in the workplace. Can we do it? Should we do it? And is it legal?

And of course, as always, if you could drop any questions you have into the question box, I'll try and address those to Seamus as and when they are appropriate in the conversation.

I can see somebody has asked a question already. "How many attendees are on the webinar just to give context to those figures?" So today, we have 122 people listening in, not to make Seamus nervous. So that just gives you a wee bit of context there for those percentages.

So recruitment and retention. Far from the mass redundancies that were being predicted when furlough ended, we've seen an extremely buoyant jobs market, to say the least. Firms are expanding and recruiting in an unexpected way. There are staff shortages across some very key industries. We've got hospitality, retail, and of course, the highly publicised haulage industry issues.

As far as employees are concerned, the workplace is a seller's market. "What are you prepared to give me to get me to work for you, really?" We've got 1.2 million job vacancies across the UK. That was in September that poll was taken. That's a record, but it puts employers under pressure. They need to respond.

I read another survey that says nearly a quarter of employees are planning to change jobs. I think that's reflected in the poll that we did. But that particular survey's view was that remote working has reduced company loyalty. And I'm not sure whether that's the reason. I think it's got to be more complex than that. What's your view on that, Seamus?

Seamus: Yeah, I had read the article, and this was an article by People Management. And there was a survey that was carried out by Randstad. Six thousand people involved in the poll, and a quarter, or 24%, which practically mirrors what we've just noticed on our poll as well, which is really interesting from a local perspective as well, said that they were planning to change job in the near future.

And I think certainly that the employee confidence and their confidence to be able to obtain alternative employment is high, and it does make people brave and it makes people realise that there's maybe more to it than their existing role.

But within that poll, 69% of people said that they were confident in their ability, and only 16% said that they were worried about finding a new role. So I think that's exactly right. What we were expecting coming out the end of furlough and out of the end of lockdowns was that there was going to be sort of mass hysteria almost in relation to redundancies, and that has not happened. And if anything, what I'm hearing through my clients is it's a shortage of staff.

And where that shortage is coming from, I don't think it's just down to company loyalty either. I think that there's no doubt that a lot of maybe foreign nationals that were living in Northern Ireland went home during the pandemic out of fear.

I know that I did a lot of redundancy work with employers where there had been a reduction in work. A lot of foreign nationals were impacted and a lot of them were returning home for safety issues, and everything else just feeling better during a pandemic to be at home. I don't think that we've seen a big influx of those people coming back at this point. That has left a shortage.

There are Brexit issues as well that have no doubt had an impact upon all of this too. It just has been a number of those factors pooled together that I think has caused this that none of us really could have foreseen.

But there is a rush almost to find roles. And I think also a big part of the pandemic . . . I think a lot of the lockdowns and people working from home and maybe having more time on their hands really was an assessment of, "Is this what I want to do? Am I happy with what I'm doing?"

I did read within these polls as well that the big aspect of people undertaking different courses, finding different skills, because they weren't happy within the role that they were doing and maybe looking to see what else they could do.

So there has been a big uptake in relation to people undertaking courses, whether that's a tech, whether through Open College or Open University. Definitely, people that have made decisions that they're not content. And part of the pandemic, I suppose, will always make people think about those sorts of things.

I mean, ultimately, company loyalty, let's be frank about it and call a spade a spade. Money talks. Remuneration packages are probably top of the pile for a lot of people, especially for a lot of younger people. Maybe not so much later on, if you've been in an organisation a very long time and you're very settled and you're very happy and the loyalty has grown up. But for younger folk, it tends to be about . . . Look, they want to buy houses. Maybe they want to get married and have children.

There's a path that takes you along that way, and a lot of the time that's driven by what the remuneration package will be.

And I think, certainly, there have been opportunities out there. I think the shortage in staff has created a vacuum and people have been able to say, "Well, I can do the same job somewhere else and maybe earn £3,000 more, £5,000 more doing that job". There are other issues involved there.

Other types of things that I think are . . . At the minute, definitely competition is fierce and that will create increases in salary. And I think the demand for skills is outstripping what we have in terms of supply at the minute.

But those negative sides to losing staff, there's the administration costs for resignations, there's time to be spent, not just doing exit interviews, and the . . . Sometimes the negative aspect can come out in employers whenever they say staff leaving of, "What are we doing wrong?" and crisis management and those sorts of things.

There are also big costs around recruitment and selection, and covering those roles while you're waiting on somebody coming in to fill the role. There's an amount of cost there to that. And there can also be the motivating factor on your existing team who are having maybe to pick up and do more work. It's unsettling for everyone when somebody leaves like that.

And then, of course, there's the induction whenever you get the new employee in, but there is that sort of push and pull factor at the minute. There's the pull of an attractive new job somewhere else, earning more money, and better terms and conditions. And then there's the push factor as well I think within organisations where maybe people feel hampered, that there isn't career progression, that there isn't opportunities, and that can move to push people on in relation to jobs and roles as well at the minute.

I think ultimately, for employees, it's definitely about flexibility at the minute. Employees are looking for flexibility within their role. If it's a hybrid system of working from home, it gives them some flexibility. If they're having the ability to cut a long journey in the morning and the evening, it provides more time at home. It provides more time with family.

I still come back to that aspect where I think that the pandemic has put purpose on people. They've had time to reflect on what I want to do. "What is it that I want?"

Christine: yeah.

Seamus: Yeah. And maybe moving in that direction. That's why maybe we're seeing that change of not just moving from jobs but career paths changes as well.

And then that sort of aspect where people want to learn and they want to progress within their career as well. Maybe what it is that employers need to do now to retain staff, or, as it is at the minute, also to obtain staff as well. Not just retain them but to get them in the door in the first place.

Christine: Well, I think, Seamus, you seem to be very much agreeing with Mr Boris Johnson. I mean, he told the haulage industry just to start paying people more and the Bank of England immediately reacted by saying, "No, don't. It's going to drag inflation up". So I think it can't all be to do with money.

Although I do have a lovely quote from People Management just about our listeners today. It was an interesting one. Seamus and I both quite enjoyed this one. It says, "HR is one of the most mercenary professions when it comes to pay". Apparently, 84% of you guys say salary is the most important factor for you when accepting a job, and that compares to only 67% of lawyers, like myself and Seamus. So we're obviously much more noble and driven by a cause than the HR professionals.

Seamus: I was astounded by that.

Christine: Yes. I have to say the lawyers I know, I am slightly shocked by that statistic. I mean, my personal opinion is that if you want to stand out from the crowd, it can't just be about money. You've got to show kind of the softer side of the business to try to retain staff and recruit staff.

So I think the pandemic has started to show employers' softer sides. By necessity, we've had to have initiatives about well-being. You're also seeing directly into people's homes on an almost daily basis. You can see that they have a dog, they have a cat, they have pictures of their kids in the background. They start to become more of a person to the employer. And I think people enjoy feeling like it's more personal and they're not just a commodity.

Would you agree, Seamus, that we do need to look at the softer skills and initiatives like that to try to recruit and retain?

Seamus: Yeah, I mean, absolutely. I think that the flexibility, say, in relation to the remuneration, that is important, and I think a lot of people do move jobs for more money. But there are also other aspects that are specifically in relation to people looking, as I said, for flexibility.

I think the other side of it as well is that people do want to work in a job where they feel valued, where their personal circumstances and their own outlook and their own ethics match that of the employer also. And that's not always the simplest thing to obtain from reviewing somebody's website. You'll hear from colleagues or from friends or from family, "Oh, they're a good employer". What makes a good employer at the end of the day?

It does make me think in that aspect of loyalty and people not being in work with their colleagues. Most of us like the people that we work with. We have good relationships with them. We miss them when they're off and we look forward to them coming back. And I can't say that, obviously, for everybody we work with. I've done too many cases where it's not all fields of gold. But there is that relationship aspect coming to work, learning about other people's lives. I mean, there's an involvement there, and that maybe has been lost through the working from home. Maybe work does just come about doing the work at home and losing that.

I know employers have done different things in relation to quizzes and cocktail mixing and all those sorts of things online, but if you're still doing that, it's not the same as the tactile side of it.

But I also think that it's not just about salary. It's about the flexible working and it's about providing an attractive set of employee benefits. And when I was doing some research into that . . . Capita had done a survey and they had said 69% of employees are more likely to stay with an employer that offers a good employee package. So it's about the overall package. And 68% in that survey said that they would take a job for the same reason.

I think other things that we need to be aware of are that candidates and employees do their research now. They will go to social media, they will go to the websites, they'll look up the anonymous websites as well to see what people are sharing about the workplace. And let's face it, that's not always good. Glass Ceiling and RollOnFriday, those sorts of websites that provide anonymity to anybody that's posting on it.

And I suppose it's about the interview aspect as well, and we talked a bit about that just before we came on, Christine. Interviews probably . . . we've moved away entirely now from interviews being about matching the skill set to the job that's being done. It's about building in more about that. It's about building in "Will this person fit within our business? Will they make a good employee? And then will we make a good employer for them?"

And certainly, within recent recruitments that we have done, you do feel it in the extent that the table is turned where the employee is then asking you questions about your organisation. They want to know.

And for me, as well, it's about building into that interview process, explaining what the culture is in the organisation, what the expectations are, how we work, what we do, and how we do it. But it's also about asking not just strictly work questions during an interview.

I'm cautious when I say, "Ask them personal questions", because obviously, there's a clear line that you would not cross, specifically in and around discrimination elements and things like that. But certainly, asking people what is it they enjoy doing outside of work, because there can be common things that could run through. And even looking at things like corporate responsibility and maybe what your organisation does in respect of corporate responsibility and whether that person has aligned views and things like that as well for it.

But I think certainly when it comes to retention, you're looking at . . . I think a competitive, fair salary is important for employees. Empowerment is really important as well. When the person comes in to the organisation, I think during that interview process, you should be explaining that there is the possibility . . . Some people don't want the progress. Some people are happy to come in to do their job and go home and that's what they're looking for. Others will want to progress. They'll want to know about, "Is there a chain of progression that can happen, and are there doors here for me that I can move and develop in my career?"

I think recognition from employers is a really important one as well. I think employers have got better at that, and I'm not just talking about throwing them a few quid at Christmas as a bonus or something along those lines. I think it's the aspect of employers acknowledging to employees that they're valued, that they're important, and that they're appreciated for the work that they do.

I mean, I know that we're in the pandemic, but things like office nights out and Christmas dinners and things like that. Christmas dinner have been almost done away with in entirety because employers tend to be so afraid of them now as well. Honestly, we're in a pandemic and that's not something that we've been able to do, but it's about showing the recognition and the appreciation for those employees and letting them know that they're valued.

Things about the relationship as well. It's a work relationship. It's a professional relationship, but that doesn't mean that . . . I mean, we're foolish and stupid to think that there won't be elements of our personal lives that will cross over with our work life. It happens.

Flexibility is definitely something that is up there. And I think just matching your benefits package to your staff is really important as well. Free beer and pizzas on a Friday night are not going to suit every single employee. They might suit the younger folk, but for the parents that need to go home to look after children, they might appreciate something different within their benefits package, like maybe their medical or their healthcare and things like that as well.

So maybe not having just a one-size-fits-all, but maybe throwing that benefit across. I think just looking after an employee's well-being is important as well.

Christine: Yeah. Just on the recruitment side of things, I think that this is actually a great opportunity for employers to start looking at diversity and inclusion issues. If you would start advertising specifically and you mentioned that you can accommodate disabilities and you have an accessible workplace, you have accommodations in your recruitment process, that's automatically going to make disabled candidates feel more comfortable, more inclined to go to you.

Then also, some firms are looking at returner programmes for women. So, obviously, we know a lot of professional women step back when they have children, but it doesn't have to be forever. I myself stepped back for a while and I've come back. So having a dedicated returners programme is really tapping into . . . There's a resource there. There's a big group of very intelligent candidates just waiting to be employed by you.

So if you start to diversify, watch your wording in your adverts to take out the kind of more male wording, which sounds like a weird thing, but it is seen to be true, or specifically say, "We welcome candidates with all abilities", you're going to widen your base in a way that your competitors aren't. So I think it's a really great opportunity.

We've talked a wee bit about the doom and gloom of it, but it can also be an opportunity. You're refreshing your team. You're getting in new skills. You get away from your groupthink that we all tend to get into when we're very comfortable with people. So I think it can be an opportunity too.

Just keeping a wee eye on the time, Seamus, I will maybe wrap this particular section up. What would your three key takeaways regarding recruitment and retention in this environment be then?

Seamus: Well, I think probably the first step is to be proactive in relation to retention. Know the staff that you have, know their worth, know what they bring to your business, and you might seek to take steps in order to protect those members of staff. Check in on them. Have conversations. Are they happy? Is there anything that can be done if they're not happy? So I suppose that there's a bit of a risk assessment internally to look at protecting your resources that you have.

And I think a big part of that is taking the temperature within work, those discussions, consultation, speaking to your staff, and getting an understanding. There are things that employers can do if they're worried about a mass exodus and they're saying, "What's the problem here? Is there a problem within our organisation?" You can look at SurveyMonkeys and suggestion boxes and things like that.

And in this current market, it might just be something that you might give some consideration to if you are noticing an exodus of a lot of employees and what you can do to retain them.

I think also incentivisation and motivation are important within your existing team. Make your workplace a good place to work. It doesn't have to be expensive to do that and it does not have to be difficult. There are lots of ways that you can go about making your place a good place to work.

I remember Scott telling me a while ago in relation to how Legal-Island deal with things like that. Legal-Island is a very open workplace. Everybody knows where the company is at financially, what is happening. It brings people on board and it gives them empowerment in relation to their role.

So I think my three takeaways would be risk assess, know what's going on within your organisation, and try to incentivise and motivate. The last one is really where there are certain rules that need protected or where you are noticing that maybe recruitment is needed, don't be afraid to make those steps if the business case is there. Move with it.

Christine: Yeah, brilliant. Thank you very much for that, Seamus. That's really helpful.

Surveillance in the Workplace

So let's have a look at our next topic then, surveillance in the workplace. Surveillance in the workplace, can we do it? Should we do it? And is it legal?

So many of the topics that we do on "Employment Law at 11" that are fuelled by what big American tech firms are doing, gig economy companies are doing, and this really is no exception. It's kind of born out of the reports on Amazon using extensive surveillance technology to monitor their employees. They've got navigation software, item scanners, wristbands, thermal cameras, security cameras, recorded footage. I mean, who even knew you could do all this?

But they're opening a huge new delivery depot and in Portadown. They're expanding their operations in the Republic of Ireland. So I think this is something that we here in Northern Ireland need to be aware of.

But I mean, it's not just Amazon that's up to this stuff. Over lockdown, many people working from home, paranoid bosses started to use keystroke technology, camera monitoring of their employees.

So I think the answer to our first question is . . . Well, can we do it? It's a resounding yes really. It can be done. The technology is there. The use of such technologies jumped by 50% during the lockdowns apparently. So, yes, it can be done. But the more important question is should we be doing it, Seamus? What do you think?

Seamus: Well, there's absolutely no doubt that during the pandemic and the lockdowns, working from home has encouraged employers to monitor staff more closely. And I suppose it's the difference between monitoring and surveillance. Monitoring is nothing new. If you come into my building, you fob-in. There's a record kept of when you're here and when you're not here, because you have to fob-in and fob-out of the building.

Whenever we work on our case management system, we time-record. So we can see from that that there's already monitoring going on. And not necessarily will that be pored over in detail, but it's management information and it helps us run our business better if we have that information.

And the point on that really is that there's a clear justification as to why we would taking those steps. I was a little bit shocked, I have to say. I'm not aware of any of my clients that have taken such severe steps, but the more sort of concerning aspects are . . . I mean, nothing new in relation to the likes of logistics and delivery drivers and monitoring of that happening in relation to trackers and things like that on the vehicle.

I've had a number of interesting cases throughout the years where it involved those sorts of cases where the tracker was showing that the delivery van was going home at 3:00 every day and remaining in the driveway until 7:00 the next morning. We've all had those cases. There's nothing new involved in that.

But certainly, as the technology has improved and grown, you're now getting to a point where those arguments are, "Oh, well, this is a step too far. It's an invasion of my privacy. It's a breach of my data rights".

Certainly, whenever you have software that allows you to go in and look through the camera of the employee's laptop and take photographs of the employee as to what they're doing, and this idea of software where there's a time-lapse done in relation to the laptop during the day, taking photographs as to whether the employee is at the laptop or not, these different keystrokes and monitoring of the number of emails that are sent, movement of the mouse, clicks to the keyboard, all those sorts of things being monitored by employers as well.

But I think that there is that balance of whenever you're working from home, there's an element of that it is your home. It is your private home. And whether or not your employer should be monitoring those aspects . . .

Even at the top of the session, you said about we know more information because we can see. Whenever we're doing virtual meetings, we can see people with their animals, their pets, their children sometimes during the meetings, whenever it's been necessitated and the baby is sleeping on Mummy or Daddy's shoulder during the meeting. That's just the way that it had to be because of the pandemic. But we do see so much more information that wouldn't be visible to us during a normal working day. So there are those aspects.

Other kinds of technologies that . . . We know sort of the biometric stuff or biological ID, the fingerprinting and the iris notifications, or voice recognition, all those sorts of things. They've all been around for a while, but I think more so recently, we see this aspect of employers now delving more into our personal lives, our personal information, our data.

And I think, for me, the key part of all of that has to be the justification. Is it necessary? If I was a judge considering those matters, I would be looking at the justification of it, and certainly want to talk about some of the case law there. Certainly, the case law is an important aspect of looking to see what is reasonable and necessary in the circumstances.

But the other important aspect of it would be to have a policy in place. If you're going to surveil, if you're going to record, notify your employees that you're going to do it and have it written down in a policy and procedure. There shouldn't be circumstances where you're covertly recording without an employee knowing, because that is illegal.

Now, I want to temper that with some of the case law that I wanted to mention. But in general, if you look at ICO guidance, if you have CCTV either internally or externally, you should have a sign up saying that.

I know of employers that have CCTV, but it also records audio, and they don't tell anybody that it records audio. I know of cameras that are located in and around offices that look like all kinds of other office paraphernalia that you would not suspect there's a camera and that it's there.

So I think that from a legal perspective, you should be open with your employees about what is happening in respect of monitoring and surveillance that takes place.

If you are given a wristband to wear at work, be clear with the employees about the type of information that the wristband is going to take, how that information is going to be stored, how long it's going to be stored for, if the employee can get access to the information because it's theirs and it's about them, and how the employer is going to review and process that information and for what purposes. So I think that we should be very clear through a written policy and procedure.

One, it needs to be necessary, and two, you should have a written policy and procedure clarifying those positions.

Now, saying that, there were a couple of Irish cases there, the case of Apple Distribution in the south, and they did have a clause within the contract that said that they could at their discretion monitor calls, emails, chat conversation, the computer desktop. They were concerned about performance of an employee, and they surveilled. They didn't tell the employee that they were doing it because they said, "It's in the policy and procedure. We have a right and the discretion to do this".

And the Workplace Relations Commission in the south, which is kind similar to our first tier tribunal process, they said that the employer's actions constituted a breach of the term of trust and confidence implied in the contract of employment. Essentially, the employer had gone far beyond what was reasonable in the circumstances.

And I'd matched that case with another one of Deegan v Dunnes Stores of 2014 in the south, where there was a suspicion that an employee was stealing. They placed a covert recording device at their deli, and they used the recording to show that the employee had stolen. The employee admitted that they had stolen, but alleged that it was a breach of their privacy because it was a covert recording.

In those circumstances, the Circuit Court, the Appeal Court in the south said, "No, there was a clear justification because there was criminal activity that was happening".

So you can certainly see the view of . . . It's a tricky one, but essentially, it is illegal to do covert recordings. But just because it's illegal doesn't necessarily mean that it wouldn't be considered by a juror

Christine Yeah, we're just getting a few comments in here, Seamus. So one person saying that monitoring in their workplace is really providing a note of what you plan to work on and an approximate time. I think that light-touch approach is what I've come across certainly much more than the kind of more draconian things we're talking about as well.

And we've got another question. "What about CCTV in a school setting?" And I suppose that really comes down to what you were saying about what's the reason for it. If you're going to start monitoring loo breaks and stuff like that, then it's probably a bit of a sledgehammer to crack a nut. But if it's for more legitimate reasons, which you've described, would you say, to thoseemployees . . .

Seamus: Yeah, I mean, I think that certainly within a school setting there's specific ICO guidance in relation to surveillance equipment and monitoring within schools. A lot of the time, they're there for security and for health and safety reasons.

That would be particularly important within certain organisations, even the likes of nursing homes with elderly and vulnerable people, schools in relation to who has access in coming and going or what people might have walked out the door that day surreptitiously and things like that. So there is a place for it, absolutely. But it's about, I think, being open and transparent about that and it been justified.

I mean, I don't think that a camera within a changing facility, either in a retail shop or a school or somewhere like that . . . I would say it's very limited circumstances where that would be justified.

And most of the times, it's very obvious to us when there is CCTV there. You'll see the camera or you'll hear it if it's one of these ones that is mobile and moves around.

Certainly, there's a place for it, but we're more concerned with the aspect of this sort of covert recording where it is hidden and where somebody isn't aware that they're being recorded. That is the bigger concern.

Christine: Yeah. I mean, certainly, when I was working in private practice, I came across covert recordings on both sides, employer and employees. It always made me extremely nervous. I wanted to run a mile from it. And tribunals at that time really didn't like the kind of implied sneakiness that was involved in that. Is that still the position now, Seamus? What's it like in tribunals now?

Seamus: Well, I certainly have had cases. And I have to say dealing with employment practice during the lockdown and the pandemic, I'm very aware that employees are . . . it's easy for employees to record Teams meetings, to record Zoom meetings. It's easy for someone to sit behind the camera and record, or take a note, or even hold devices up to the person on the other side, because you don't have that ability to see what's going on outside of the periphery of the camera. So I am aware that those things are happening.

I do both claimant and respondent work, and I've an on-going claimant case at the minute that the redundancy process has just finished. And the claimant has been clear with me that she has recorded every meeting that she's had with the employer that has been done over Teams and Zoom and those sorts of things.

I sort of came in very late at the end, and I'm just instructed in relation to the case now. She has emailed me all of the recordings.

Christine: Your worst nightmare.

Seamus: I have them all. My experience has been that in any cases that I've dealt with at the tribunal in relation to covert recordings is that the tribunal has made their position clear, that they're potentially illegal recordings, but they've accepted them and they have taken them.

I had one case, which ultimately we settled, whereby the employee had a pen on their jacket that was a recording device and had very clear footage of the meetings that took place and at the tribunal provided, I think, a case management point. Their counsel made the point that they had these and they would be exchanged in discovery, and the transcripts would be provided in relation to all of the recordings as well.

And I had another case in the tribunal maybe going back up about five years now where I acted for the employee. And he had been off on long-term sick leave. He was required to attend his place of work every Thursday to collect his sick pay, and each time he went, his boss, the owner of the business that he worked in, was threatening to him.

On the last occasion that he went, he was threatened physical violence and he recorded it on his phone. So he went in to pick up his salary. He recorded it on his phone. I had concerns about it, but we did disclose it to the other side. We informed the tribunal and the tribunal accepted it as admissible evidence. And it was very clear at that point that . . . It made our case, I have to say, because there was evidence of the fact that he was physically threatened and that his position was untenable as a result of that. So it was helpful.

Just to sort of balance it off, Christine, I thought it would be helpful . . . I mean, there are cases out there, wider European cases. Ikea were issued with suspended jail sentences and fined a million euros for spying on staff within their French outlets. H&M were fined €35 million in relation to illegal staff surveillance activities that they were undertaking.

There's an interesting Spanish case that the ECHR ruled on I think back in 2020, Ribalda and Others against Spain. The allegation was that the courts had failed to uphold the privacy rights of employees. And the ECHR came back and said that the Spanish courts had not failed to protect employees' privacy under Article 8 by the fact that they had installed hidden cameras to monitor suspected workplace theft.

And a big part of the justification in that was that there was a suspicion that there was criminal activity going on. And ultimately, the court found that it was appropriate for the employer to covertly record and get to the bottom of the issue.

Now, within that, a couple of interesting points. They said that the surveillance was justified because there was a suspicion of theft. The surveillance was limited to looking at that issue and that issue only. The recordings weren't used for any other purpose. And the monitoring that they did was in an open, public area. It wasn't in a secluded, private area, like the locker area or the changing room area of the staff. So there is a balance that is struck by the courts.

What I was going to mention to you is there is a fantastic resource on Legal-Island's website that is produced by Louise McAloon and Worthingtons in relation to covert recordings in the workplace. It covers everything that you will need to know. It's available for Legal-Island members that are on there.

But I know that we're tight on time. There's an interesting case in there for McCullough and Antrim Borough Council, whereby the employee was being disciplined to do with unauthorised absence and, during that disciplinary process, provided a surreptitious covert recording that he'd made of his manager on him having a conversation about absence.

The Council then added a further allegation in relation to the covert recording, and he was dismissed on the basis, I think, of both the unauthorised absence and the covert recording.

Ultimately, the finding was that the covert recording was sufficient to provide for a breakdown in the working relationship and that the employer was entitled to dismiss it as a result of breach of trust and confidence.

So, ultimately, yes, it is illegal to make these covert recordings, but the quagmire of it all is that it can be helpful in a court or tribunal setting if they're available, and often they will be admissible.

Christine: Yeah, it's one of those lovely legal answers where it's, "Yes, it is illegal, definitely, but . . ." So there's always the exception, which keeps us in work, I suppose.

Just winding up this topic, Seamus, what would be your three key takeaways on surveillance in the workplace then?

Seamus: I think absolutely have a clear policy and procedure in place. Employees should be aware if there are recordings happening, and you should make them aware that that is the position.

I think where it's justified and where it is necessary, you can look at covert recordings. I think if the benefit outweighs the risk in relationship to it, it can sometimes be a calculated risk that has to be taken.

I suppose my last one is really if you are thinking about covert recordings, maybe just take some legal advice in relation to it before you do it. It isn't clear-cut. It is risky. And sometimes the circumstances that you think will justify it will not be what a court or a tribunal will see it as. So it's important that maybe some advice is taken in relation to it also.

Christine: Brilliant. Thanks very much for that, Seamus.

And believe it or not, that brings us to the end of the webinar today. Time really flies when you're doing these things. All that really remains to be said is Seamus and I will see hopefully a lot of you at the Annual Review next week, if you believe it. Wednesday and Thursday next week.

There is still time to book on. You have up until 5:00 on Tuesday night to book on, if you haven't been lucky enough to get your tickets just yet. That will be in the email after the webinar.

Seamus will be there on the second day of the Annual Review talking about long-term absence and the law. So we look forward to that. I will be flitting about with the rest of the Legal-Island team, hopefully keeping the show on the road. So I'll see you there. It'd be great to see you.

My next webinar with Seamus will be on 3 December. If you've any topics that you would like us to discuss, please drop us a line. We're always happy to hear from you, and we want to talk about the stuff that you're interested in. So do drop us a line.

But thank you very much for coming along today, and thanks to Seamus. I will see you next week. Bye.