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€25,000 for Retail Worker with 'Appalling' Absence Record

This week we look at a fascinating recent High Court decision in which the Plaintiff employee sought damages for personal injury after discovering that her employer kept a private investigator's report on her HR file for a protracted period. Our Adrian Twomey highlights the key points to note in the case of Brogan v The Dublin Airport Authority, [2021] IEHC 858.

The Plaintiff in the case, Ms Bridget Brogan, commenced her employment as a sales assistant at Dublin Airport in May 1997. She initially worked on a full-time basis, but her hours of work were later reduced to part-time by agreement.

From 2002 on, the Plaintiff went through a terrible time in her personal life. Her relationship with her partner and the father of her two children broke down. According to the Court, she suffered "a protracted period of abusive behaviour from her ex-partner, which lasted for many years". The same ex-partner provided no financial support and Ms Brogan bore the entire responsibility for caring and providing for their two young children. She was also involved in two road traffic accidents in 2002.

From that point on, the Plaintiff was absent from work for significant periods and was involved in litigation arising from one of the road traffic accidents. Her employer appears to have been very supportive at the time.

The Plaintiff was again absent from work for long periods between May 2006 and December 2007 and from July 2008 to December 2010. Records produced to the Court suggested that the first of these absences arose due to a lifting injury suffered by the Plaintiff at work. Records also appear to have raised concerns regarding the legitimacy of the second period of absence. The Defendant employer appears to have had suspicions that the Plaintiff was teaching Irish dancing classes whilst out sick.

The employer commissioned a private investigator to carry out surveillance on the Plaintiff in 2009. The private investigator appears to have followed her for five days, taken photographs and video footage of her and her children and provided a written report to her employer. Having not seen anything to suggest that Ms Brogan was teaching Irish dancing, the investigator telephoned her and asked her if she would be interested in giving lessons at a local GAA club. She apparently indicated an interest in doing so.

The Plaintiff eventually returned to work in December 2010, having been absent for the equivalent of four out of the previous four and a half years. A series of further issues arose over the course of the years that followed. Crucially, in August 2014, Ms Brogan asked to revert to full-time working. Discussions took place arising from that request and those led to Ms Brogan asking to see her personnel file. She was permitted to do so and was shocked to find the private investigator's report on the file.

Two years and nine months later, Ms Brogan had her solicitors issue a Personal Injuries Summons. That Summons referred in broad terms to her having suffered personal injuries as a result of the Dublin Airport Authority later allegedly subjecting her to unfair treatment, bullying, intimidation, aggression and victimisation. None of these allegations were upheld. Significantly, however, it was also alleged that the employer had breached the Data Protection Acts by retaining the investigator's report on her personnel file for several years.

In a lengthy and well-reasoned judgment, Ms Justice Murphy concluded, amongst other findings, that:

  • the Plaintiff's complaints of ill-treatment and bullying were "unfounded";

  • she was treated decently by her employer during a long period when she was under constant personal stress;

  • the Dublin Airport Authority had tolerated a level of absence that would be unacceptable in most workplaces; and

  • there was no bullying within the Workplace Relations Commission's definition of that term.

However, the Court was critical of the employer's failure to remove the private investigator's report from Ms Brogan's personnel file after the purpose for which that report was commissioned had expired. According to the Court:

"the Defendant knowingly decided not to comply with its legal obligation to remove the private investigation report from her file.... The Defendant chose not to call any evidence to explain its actions. In these circumstances the court has surmised that it took a deliberate decision to ‘let sleeping dogs lie’ rather than admit its error in allowing the report to remain on the file for a period of almost six years. Its approach was cynical, unworthy of a semi-state body, and unlawful. The court considers that the failure of the Defendant to acknowledge its error and its failure to comply with its legal obligation to remove the private investigator’s report, did potentially constitute negligent infliction of emotional distress."

The Court awarded Ms Brogan €25,000 in compensation for that negligent infliction of emotional distress. The issue of costs does not yet appear to have been determined. Given the duration of the litigation and the number of witnesses called during the hearing, however, one suspects that the modest award of compensation will be dwarfed by the legal costs incurred by the parties.

Despite Ms Brogan having technically "won" the case, it may yet prove to have been a pyrrhic victory. Employers and insurers will doubtless be heartened to note that she did not succeed in relation to several aspects of her claim. However, the key takeaway point for HR professionals is that it is both unlawful and unacceptable to retain personal data relating to employees on file beyond the period that is necessary to meet the purposes for which it was originally gathered. It may be time for you to carry out a cull of files or documents gathering dust in a back office, or stored away on your computer system!

Those who require advice in relation to employment law cases or who need representation before the WRC or Labour Court can contact our Adrian Twomey. Those seeking assistance in relation to personal injuries (whether caused by their working environments or otherwise) may obtain advice and assistance from our Robert Jacob.


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