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.