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A mild inconvenience that can be overcome as soon as one wants to

Almost everybody must be guilty of this offence. Copping out. Opting out of work, or an engagement, or an appointment, or attending court. And the usual excuse? ‘Not well’. Sick. Headache, stomach ache, the flu. Usually, it is just a mild inconvenience that can be overcome as soon as one wants to.

Experience tells us that attendance in courts is where this ‘story’ most often crops up. A month back, a judge passed an order dismissing a case because the ‘sick’ complainant had avoided appearing before him. The next-in-line would be at the place of work. Monday morning blues. A death in the family, the deceased being far removed by relationship, is another usual plea. The list is long and very imaginative.

Our topic this time is workplace-related. A woman was employed as a secretary. She reported to the management; obviously an important assignment. However, as it often happens, she could not get along with others. She soon reported sick. She had, she claimed, a bronchial infection. Later, it turned worse. She did not attend work for a long time. She sent in a doctor’s and a specialist’s certificates.

In the judgement mentioned above, the judge dictated in his order that no medical certificate was presented for absence from the court. Some proof was needed to justify non-attendance. In the case of our sick woman, six certificates were sent. The management, however, was not convinced. Her phone calls ‘reporting ill’ were doubted.

The question was how best to prove the secretary wrong. It is precisely in such situations, more ego-driven than anything else, that things get out of hand. Someone thought of a brilliant idea. Spying on her seemed the best way to beat her at her game. Obviously, no boss would do the dirty work. 

It was handed over to a professional detective agency. Spying is the name of the game.

It worked. Over four days, the detective went to work. He did a thorough job. Not only did he shadow the employee, he kept tabs on her husband as well. And the house. And the dog. He followed her to the laundrette where she did the laundry, ostensibly all by herself. She was video-graphed. And photographs were printed from the recording. She seemed OK. At least, she did not seem to suffer from the various illnesses she had claimed to be afflicted with. She was truly nailed.

Now, you be the judge. What would you do, if you were the management? What would you do if you were the employee?

Confronted with the evidence, the secretary hit back. How dare they follow her? Had she no right to privacy? Thus offended, she sued. Reminds one of a Gujarati saying of a chor (thief) threatening the kotwal (policeman).

The Federal Labour Court decided in favour of the woman. She had asked for damages. It ruled that she deserved to be compensated, though not as much as she asked for. It awarded Euro 1,000/-. That is, about Rs. 80,000/-. Less than 10% of what she had demanded. Not really that much in Germany; but good enough for ‘not attending work’!

The court explained its ruling. It said that there must be a legitimate reason, for example, a theft, to put sleuths on someone’s trail. Just conjecture is not enough. The compensation was more or less a slap-on-the-wrist order. But it did set a precedent. No snooping by the management.

This, of course, raises some disturbing questions. What about the CCTVs, the omnipresent cameras on closed circuit? If one is warned about the cameras’ presence, is it enough? These days, one is monitored at all times. Two years back, in an English Old Bailey (Crime) Court, the whole sequence in a murder trial was sought to be proved by these cameras. Something that lasted over an hour, including a bus ride. Would that also be an invasion of privacy?

Technology has a lot to answer; recorders need to be careful. 

Courtesy: Moneylife

(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to

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