The use of private investigators in an employment context

The use of private investigators in an employment context

The question of the use of private investigators often arises in an employment context, whether during the course of defending personal injuries proceedings, investigating potential abuse of sick leave or time and attendance policies by an employee or other internal investigations or disciplinary processes by employers. In this article, Deirdre Crowley of Crowley Solicitors examines when private investigators can be used, how they should be engaged and outlines some guidelines to help employers ensure that the use of a private investigator is justified and warranted and in compliance with data protection requirements.

At the forefront of all employer’s minds, whether the proposed private investigation relates to personal injuries proceedings or some internal investigation/process, is data protection, and in particular an employer’s obligations under the Data Protection Acts 1988 to 2003, as well as the general right to privacy of an individual, which is protected by the Constitution and the European Convention on Human Rights. Any use of a private investigator must be balanced against these competing rights and caution should be exercised by employers.

Employers are also conscious of the residual powers of judges to exclude evidence if facts could be obtained by means other than using a private investigator’s report. Employers should always ask the question as to whether it is absolutely necessary to retain the services of a private investigator. The importance of asking this question is evident from the case of Sweeney v Ballinteer Community School

[2011] IEHC, which is discussed below, where the High Court awarded exemplary damages for what it believed to be unnecessary use of a private investigator’s report.

Regulation of Private Investigators

Pursuant to the Private Security Services Act 2004 (Commencement) Order 2015 and the Private Security (Licensing and Standards) (Private Investigator) Regulations 2015 it is now an offence to engage or employ a private investigator who is not licensed by the Private Security Authority.

A private investigator, is a person who in the course of a business, trade or profession, conducts investigations into matters on behalf of a client and includes a person who:

  • Obtains or furnishes information in relation to the personal character, actions or occupation of a person.
  • Obtains or furnishes information in relation to the character or kind of business in which a person is engaged.
  • Searches for missing persons.
  • Obtains or furnishes information in relation to the loss or damage of property.

From 1 November 2015, contractors providing any of the above services will require a licence from the Private Security Authority. It is an offence to engage an unlicensed private investigators, with penalties ranging from a €3,000 fine up to 5 years’ imprisonment.

Terms of engagement with a private investigator

Helpfully, the Data Protection Commission in case study 13 of 2011 set out the rules to be observed by both the employer and the private investigator when agreeing the terms of engagement:

  • Prior to passing any instructions to a private investigator in respect of any individual, the data controller (the employer) should have a written contract in place with the private investigator (the data processor) which meets the requirements of Section 2C(3) of the Data Protection Acts.
  • Any processing of information by private investigators on their behalf must be undertaken in full compliance with the Data Protection Acts.
  • The private investigator is expected to comply at all times with the Data Protection Acts and should not perform their functions in such a way as to cause the data controller to breach any of its obligations under the Data Protection Acts.
  • Any unauthorised processing, use or disclosure of personal data by the private investigator is strictly prohibited.
  • Where the private investigator, pursuant to its obligations under contract from the data controller, processes the personal data of an individual on behalf of the data controller, the private investigator should:
    • Process the personal data only in accordance with the specific instructions of the data controller.
    • Process the personal data only as is necessary for the fulfilment of its duties and obligations under the contract with the instructing data controller.
    • Implement appropriate measures to protect against accidental loss, destruction, damage, alteration disclosure or unlawful access to the personal data in their possession.
    • At the conclusion of each investigation, deliver all data collected and processed under the contract of service to the instructing data controller and delete all such personal data held by itself at that time.
    • Not further disclose the personal data to any other party except with the express approval of the data controller.
    • Not seek to access personal data held by other data controllers which is not in the public domain without the consent of the data subject or unless otherwise permitted by law.

The Data Protection Commissioner is currently taking a hard line stance against private investigators who do not fully comply with their data protection obligations. This is evidenced by the recent successful prosecution of private investigators by the Data Protection Commissioner, for breaches of section 22 of the Data Protection Acts (disclosure of personal data obtained without authority) before the District Court. The increase in investigations and prosecutions of private investigators shows that question of private investigators is and will continue to be a headline issue for the Data Protection Commissioner.

Admissibility of Private Investigator report or evidence

The Data Protection Commissioner has made clear that if, by engaging a private investigator, an employer is in breach of its data protection obligations, then the Data Protection Commissioner can order the destruction of the evidence gathered by the private investigator. This would prohibit an employer from relying on this information in any proceedings or investigation. The Data Protection Commissioner has made its position on covert surveillance clear in its 2009 Report, where it stated: ‘Covert surveillance of individuals is very difficult to reconcile with the Data Protection Acts. As a minimum and this may not even make such surveillance legal there must be strong and evidence based justification for such surveillance in the first instance.’

Given the Data Protection Commissioner’s position, it would not be advisable to rely solely on a private investigator’s report for example in disciplinary proceedings, as if in any subsequently appeal or WRC case by an employee it is held that the surveillance was excessive, this may preclude the employer from relying on this information. If the private investigator’s report is the only evidence relied upon by the employer, then at the very least the employee should be provided with this information in the course of the investigation and given an opportunity to review and make submissions in respect of the findings of the private investigator. It is important that an employer can provide justification for the use of a private investigator surveillance of an employee.

In Data Protection Commissioner case study 10/2008, which related to a complaint to the Data Protection Commissioner from two employees in respect of covert CCTV surveillance of their attendance at work, it was held that the employer could not rely on the CCTV in support of disciplinary proceedings against the employees in respect of their attendance at work.

Often in personal injuries proceedings employer defendants will engage a private investigator to ascertain if the extent of the injuries of the employee are at the level claimed. As well as the data protection considerations set out above, it is also important that any such surveillance is not excessive of an infringement on the employee’s (or former employee’s as the case may be) privacy.

The caselaw shows that a court will not look kindly on an employer who engaged in excessive and unwarranted surveillance of an employee. In the High Court case of Sweeney v Ballinteer Community School [2011] IEHC, where there was a claim of bullying and harassment, the High Court was critical of the decision by the principal of the defendant school, without the knowledge of consent of the Board of Management, to engage a private investigator to follow the plaintiff over the course of 4 days. The surveillance only stopped after Garda intervention when the plaintiff became aware of the surveillance. The High Court held that such surveillance was ‘a most serious harassment of the plaintiff’ during working hours. This was particularly in circumstances where the principal was aware of the plaintiff’s medical history and the fact that she had been absent due to work related stress. The Court felt that it was reasonably foreseeable that if the plaintiff was aware that she was being pursued by a person who was not known to her that ‘the effect on her was likely to be so traumatic as to precipitate her into mental illness’. The Court upheld the plaintiff’s claim of bullying and harassment and the use by the principal of the defendant of a private investigator in such excessive terms was a factor in this decision.

The recent increased willingness on the part of the Courts to grant section 26 applications means that the use of private investigators in personal injuries proceedings is likely to increase and so employers and insurers should be aware of the data protection and privacy obligations associated with the engagement of private investigators. In brief, there are provisions under section 26 of the Civil Liability and Courts Acts 2004 which are intended to combat fraudulent claims or exaggeration by a plaintiff of injuries allegedly suffered.

Section 26 of the 2004 Act states that where a plaintiff gives or adduces or dishonestly causes to be given or adduced, evidence that is false and misleading in any material respect and he/she knows to be false or misleading, then the Court shall dismiss the plaintiff’s action, unless for reasons that the Court shall state in its decision, the dismissal of the action would result in an injustice being done. The onus is on the defendant in such applications to show that, as a matter of probability the evidence given by the plaintiff was false or misleading in a material respect and often private investigator reports/evidence will be produced in support of such an application.

In order to ensure that the private investigator evidence is admissible in such applications, or in personal injuries proceedings in general, the defendant should ensure that it is not a disproportionate or unwarranted invasion of privacy and that the engagement with a private investigator is along the terms set out by the Data Protection Commissioner. Generally private investigator evidence/reports are admissible in personal injuries proceedings provided that it is not a disproportionate invasion of privacy and that the investigation/surveillance is warranted by the litigation in question. Defendants should also keep in mind the data protection requirements and the specific requirements set out by the Data Protection Commissioner in relation to the engagement of private investigators. If there is evidence that the data contained in a private investigator report was obtained or processed in an unlawful manner then a plaintiff may seek to challenge its production at Court.

Conclusion

Each case should be considered on its individual facts and there is no one size fits all answer when it comes to the use of private investigators. Employers should exercise caution when determining whether or not the use of a private investigator is warranted and justified. Surveillance is often justified and it is now often a part of dealing with personal injuries cases, however that does not mean that the plaintiff/insurer should not abide by the data protection and privacy rights of the individual.

The guidance from the Data Protection Commissioner and the caselaw shows that an employer must show strong justification for this potential invasion of privacy, and consider whether there are any alternatives to the engagement of a private investigator.

For further information on any issue raised in this article please contact Deirdre Crowley at dcrowley@crowleysolicitors.ie or Niamh Walsh at nwalsh@crowleysolicitors.ie.

This article is a general summary of the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis.

2018-03-12T11:56:23+01:00