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Irish Data Protection Commission Case Studies
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CASE STUDIES 2013 - Data Protection Commissioner - Ireland [2013] IEDPC 10 (2013)
URL: http://www.bailii.org/ie/cases/IEDPC/2013/2013IEDPC10.html
Cite as:
[2013] IEDPC 10
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This Office received separate complaints from two former employees of an hotel in Dublin 2 in relation to similar incidents which occurred six months apart. Both complaints concerned the alleged unfair processing of personal data by the hotel. In both cases the complainants worked as night porters, and they both faced disciplinary proceedings for allegedly sleeping on duty. In both cases, the evidence used to ground the disciplinary proceedings included photographs taken on a private mobile phone belonging to the assistant night manager, and in each case the complainant was subsequently dismissed. One of the complainants informed us that the assistant night manager who took the photograph had shown it on his mobile phone to a colleague on the evening following the incident and he contended that the manager did this in a manner which indicated that the photograph was taken as a joke.
We commenced each of the investigations by writing to the hotel outlining the details of the complaints.
In relation to the first complaint received, the hotel responded to us stating that the hotel did not request and does not condone any employee taking photographs of another employee without their knowledge. The hotel also stated that, following a full investigation into an allegation, it was found that the complainant was asleep whilst on duty and his employment with the hotel was subsequently terminated. The hotel indicated that the findings of the investigation were based primarily on the evidence taken from the assistant night manager and not the photograph. It was also indicated that the complainant had given a statement and did not deny the allegation. The hotel also confirmed that it was made aware of, and had been provided with, a copy of the photograph in question.
We sought further clarification from the hotel and it informed us that the photograph had been shared with the Director of Operations and the Human Resources Officer by the assistant night manager at the time he reported that the complainant had been sleeping on duty. The hotel stated that the mobile phone used was the personal property of the assistant night manager on duty and that no employee had been instructed, encouraged or asked at any time to take photographs of any other employee.
We informed the hotel that, having investigated the complaint, we were of the opinion that the photograph in question was likely unfairly obtained by the hotel. We asked the hotel to confirm to this Office that the photograph had been destroyed / deleted and that they had made no use of it in its disciplinary proceedings against the employee concerned.
The hotel confirmed that the photograph had been destroyed and that the decision to dismiss the employee was not based on the photograph. However, the complainant subsequently informed my Office that an electronic version of the photograph existed and had been seen by other members of staff and that this, as well as the fact that the photograph was used as evidence against him, was recorded in the minutes of the investigative hearing.
Following an examination of the minutes of the investigative hearing which were supplied to us by the complainant, we contacted the hotel and we stated that the minutes suggested that the photograph was used by the hotel in the disciplinary process, which was contrary to what we had been previously informed. The hotel responded by saying that, while the photograph substantiated the assistant night manager's statement, it was not a determining factor in the decision to dismiss the complainant.
In relation to the second complaint, we asked the hotel to inform us if the assistant night manager had been requested to take the photograph in question by the hotel.
In response, the hotel indicated that the assistant night manager was not authorised to record images on his mobile phone and that measures had been put in place to prevent the recurrence of inappropriate use of mobile phones / mobile phone images.
Both of the complainants sought decisions on their complaints. In making his decision, the Commissioner formed the opinion that the personal data in question (in each case a photograph of the complainant) was unfairly obtained and unfairly processed by the hotel in contravention of Section 2(1)(a) of the Data Protection Acts, 1988 & 2003. These contraventions occurred when the hotel obtained the photographs from the assistant night manager after they had been taken on his personal mobile phone, and then processed them in the course of disciplinary proceedings against each of the complainants.