A FORMER MECHANIC with the Automobile Association, who was videoed helping his mother-in-law prune a garden tree while he was on sick leave, has won damages against the AA for breach of his personal data rights.

Judge Jennifer O’Brien also directed Philip McCabe’s former employer to account for the loss, erasure or destruction of a mobile phone video of him taken by a member of AA Ireland Ltd management from a car parked across the road from his mother-in-laws house.

The judge said Mr McCabe, of St James’s road, Walkinstown, Dublin, on August 29,2022 was on his last day of sick leave with a knee injury when he had been recorded assisting his mother-in-law, at her Lower Ballymount Road, Walkinstown home, cutting overhanging branches from the tree.

Judge O’Brien said Mr McCabe had been suspended with pay the following day and a fortnight later, after a disciplinary hearing, had been summarily dismissed. He had failed in an appeal against the decision and afterwards settled a case relating to his dismissal through the Workplace Relations Commission (WRC).

In a reserved judgment Judge O’Brien said that in the afternoon of August 29, 2022 Mr McCabe noticed a vehicle occupied by senior members of AA management parked across the road and, after approaching them, he saw his Operations Manager, Adam Staunton, was recording him.

Barrister Jamie Quane, who appeared for Mr McCabe, had told the court the video had not been used as evidence for his dismissal or during his WRC claim as the AA had claimed to have had “three very credible witnesses to the event” in the car.

Judge O’Brien said it was claimed by Mr McCabe that information had been recorded, used and processed in breach of the provisions of the GDPR and the Data Protection Act and in violation of his constitutional rights and the European Convention on Human Rights.

He had also claimed AA Ireland Ltd had used his personal data for surveillance and tracing his private movements, unlawfully processed it and had collected it for an illegitimate purpose.

“By letter of 15th November 2022 (AA Ireland Ltd) denied processing or possession of the covert video…and Mr McCabe claimed if it was not in the AA’s possession it had been unlawfully deleted or destroyed,” Judge O’Brien stated.

She said Mr Adam Staunton had sworn an affidavit in which he had confirmed he did not hold a video recording of Mr McCabe in any capacity whatsoever; did not have access to any such video; confirmed he had never shown anyone in AA Ireland Ltd a video of Mr McCabe and that he had not transferred any video of him to AA Ireland or anyone else.

Conor Kearney, counsel for AA Ireland had stated the recording had not been taken on the instructions of AA Ireland and that it had been deleted. Judge O’Brien noted AA Ireland had not produced any sworn testimony that the offending video had been deleted by Mr Staunton.

“While the defence… states the video was deleted this is unsatisfactory in circumstances where Mr Staunton’s sworn affidavit does not address this,” Judge O’Brien said. It had been submitted that the recording had not gone beyond Staunton’s phone and, as such, there had been no processing on the part of AA Ireland. It had never been handed over.

Judge O’Brien said one of the grounds for Mr McCabe’s dismissal had included his angry reaction to Mr Staunton recording him and in her opinion it was incumbent on AA Ireland to account to Mr McCabe for the erasure or destruction of the mobile phone video.

She said that given the seriousness of the steps taken against Mr McCabe following the video it was in the interests of fairness and transparency that a copy of it be made available to him and that he be reliably informed of its destruction. This may have assisted him in defending the actions taken by AA Ireland.

Judge O’Brien awarded McCabe €5,500 compensation for damage suffered by him in the infringement of the Data Protection Act and made a declaration that AA Ireland Ltd had breached his personal data rights.

Awarding him his full legal costs Judge O’Brien also made an order directing AA Ireland Ltd to account to Mr McCabe for the loss, erasure or destruction of the mobile phone video.