It is reasonable for an employer to use vehicle tracker data to investigate potential misuse without having a specific policy in place?

Posted in : Seamus Says - Employment Law Discussion on 5 April 2019
Seamus McGranaghan
O'Reilly Stewart Solicitors

We dealt with company vehicle tracking last month, but we've got another question coming in following on from that discussion.

"Specific policy or procedure is not in place, but employees have been made aware of the tracker on the vehicle for business purposes. A concern was raised with regards to an employee's behaviour. Is it reasonable to look at the tracker to truly investigate potential misuse of the vehicle without having a specific policy in place?"

Seamus: We dealt with company vehicle tracking last month and the advice was that you should have a policy and procedure in place in respect to that, but I can see this question has come on probably from the fact that they don't, and then they're having concerns about the fact that they don't, but there's the potential that they want to do some investigations.

You know, the basics of it are that the vehicle tracking system does collect personal data as well as business information. They're recording the location of the individual in charge of the vehicle at any particular time. But the bottom line is there must be a reason before you can monitor or track the employee, and it must be a legitimate reason. I think that's the key for this. And it must be a legitimate interest of the data controller without prejudice to the rights and freedoms of the employee.

So it's a bit of a balancing act that you're doing in relation to, you know, the operation of the business and very legitimately wanting to know where certain vehicles are. If you have another pickup or another job to do, that you're able to look at it and find out where the individual is and pass them on.

But the aspect of going back in to look at those more personal details of . . . you're not using it solely for that business reason to find out where the vehicle is to pass it on to somewhere else, but because you have worries are concerns about the employee's behaviour. So that's why it's key for you to have the policy and procedure in place.

Scott: It muddies it to the extent a tribunal might come around and say, "You're using it for a separate purpose", or the lawyer for the claimant might say, "Hold on a second.   says you're only supposed to use data for the purpose of which it's being collected". So it causes some difficulties, and some of those things can't be unlearned.

But at the same time, you've got the right to protect your business. If you've got somebody who is trying it on, then you might want to just take a risk and use the information anyway.

Seamus: I agree, absolutely. I mean, the strict legal position would be that if the purpose for the tracking device is to deal with the business aspect, that's the realm that you should be working in.

But saying that, I think I maybe mentioned this on the last occasion as well. I had a client of mine that just by reviewing the records, which they were doing for business purposes for working out new logistic routes and things like that, they noticed that at 3:30 every day, the company van was at a local school where the employee worked. And the connotation that was taken from that was that the employee was actually at half three going and picking his children up from school every day and bringing them home.

And that led on to concerns as to . . . a number of times they noticed that they were ringing the employee at 4:00, and the employee was saying, "I can't get to that call, because I'm at this call doing something else".

And the information was there. They came through and they said to me . . . they provided me with their records, and they said, "It's within our knowledge", and they said, "We weren't going purposely looking for it, but we now have it. And what do we do about it?" And it's very difficult not to advise the employee whenever there is evidence in front of them that there is a breach of their policy and procedure. The vans were not meant to be used for personal use, and insurance issues and everything else with having other people in it that the company is not insured.

And we did deal with it on the basis of an investigation on a subsequent disciplinary. It didn't go down the line of a dismissal. Maybe if it had gone down the line of dismissal, there might have been more information for me to give to you about it.

Saying that even, I have come across cases as well . . . it's different, but it just gives you a flavour of the tribunal's view, cases where there have been surreptitious recording of meetings that have taken place. And in my experience, the tribunal have allowed us to . . . you know, it's been inadmissible evidence. They've allowed us to use it during the hearing, even though technically speaking it's a breach of the legislation and a breach of somebody's data protection rights if you're surreptitiously recording a conversation that you haven't . . . one that you're not aware of and that you haven't agreed to.

So, you know, from my point of view, I would think that even if you had come across the evidence in a way that you didn't set out to, but once you have it and it's within your knowledge, again, I agree with you, you're entitled to protect your business. But it is a balancing act of protecting your business and covering the privacy rights of . . .

Scott: It depends how you want to protect it, because you can protect it in a way that you warned somebody but you didn't dismiss. Or you could say, "We now know you're up to something. Don't do it again. If we catch you again, we're going to take action". So long as you don't dismiss first time around, you're probably okay. You know what I mean? It's when you jump in and you dismiss, and then somebody says, "Oh, you're not allowed to use this evidence", that it causes some problems.

And it may be allowed, it may not be, but it just causes you difficulties. And it means you're more likely as an employer to say, "I better settle, because this is a bit greyer than it used to be. We've caught somebody red-handed, but unfortunately, caught them red-handed using the wrong information". So, you know, we don't know which judge we're going to get. We don't know what the claimants are going to say. We don't know whether that stuff will be admissible. So it might be better just to mark their car and take it from there".

Seamus: Well, that's it. Another example that I can think of as well is that it's not just about the vehicle trackers, but now a lot of the employers and a lot of the companies have the little dash cams on the vehicles as well.

Certainly, where there have been accidents, where there have been vehicle damage and insurance claims and all that sort of stuff, the employer has gone back and reviewed the dash cam footage to find out exactly the way the employee was driving. And I think some of that dash cam coverage is linked to the car and can show the speed that they were going at and things like that as well. A number of them have used that as well to discipline members of staff. But again, best policy is to have it written down in the policy and procedure.

 

This article is correct at 05/04/2019
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Seamus McGranaghan
O'Reilly Stewart Solicitors

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