Labor Appeal (National) 41179-01-24 Dr. Mark Friedman Ltd. – Revital Elkaner - part 7

(hereinafter: "the Lopez case").

78. In 2017, the European Court of Justice (Antović and Mirković Montenegro, App.  No. 70838/13, Eur.  Ct.  H.R.  (2017)) that the placement of cameras can be considered an invasion of privacy even in areas of the workplace that are clearly not private, but the employees create interpersonal interactions in them that are related to the construction of the employees' professional identity and the core of their employment, and the employees have the right not to be documented in them against their will.
79. The most significant judgment of this court in our case is the 2018 judgment in the Lopez case, in which the European Court defined guidelines for examining the balance between the violation of employees' privacy and the employer's interest:
    • The employer must give the employee advance notice regarding the installation of the cameras before they are installed, the notice can be given to the employee in a variety of ways, provided that it is clearly and transparently communicated regarding the manner and purpose of the cameras. Even after the employer has informed its employees of the installation of the cameras, the extent of the violation of privacy resulting from that action must be examined.  Here, the court emphasized the place where the cameras were placed, the scope of the documentation in terms of time and place, and the number of people who are given access to the documented material.
    • Despite the general recognition of the employer's right to install cameras in the workplace, to the extent that it is found that the documentation was more intrusive, the employer is obligated to provide appropriate justifications for such an infringement of the privacy of its employees. Even after plausible justifications have been provided, it is necessary to examine the existence of a means that is less harmful, whether it was possible to choose less intrusive documentation, which invades the privacy of the documented employee, in a way that would achieve the goal in a similar way.
    • The examination of the violation of privacy is not limited to the employee's expectation of privacy and the nature of the documentation itself, but also to the potential harm to the employee as a result of the documentation. To this end, the court also wishes to examine the legitimacy of the use of employee documentation afterwards, and whether it was used only for the purpose for which it was intended.  Finally, the court also wishes to examine the protections provided to the employee against the violation of his privacy.  Starting with the employee's advance notice, and ending with the employee's ability to express reservations about the documentation, or to file a complaint if necessary.
80. In 2018, the Directive was replaced by the General Data Protection Regulation ("GDPR"), a pan-European regulation that came into effect in 2018. The regulation limits the possibility for employers to collect and process employees' personal information without consent or legal basis.  The regulation requires employers to provide employees with information about data collection, maintain transparency in processes, and conduct risk assessments in cases of surveillance.  It should be noted that although the judgment in the Lopez case was given before the GDPR came into effect , in the framework of the judgment the court refers to the regulation, since it was issued only a few months after the judgment was issued, when it was known that the intention to publish the regulation was known.
    • 4. Principles for Examining an Invasion of Privacy
81. As can be seen, there is a great deal of preoccupation in legislation and case law in Israel and around the world with the question of the boundaries of privacy in general and in the workplace in particular, but it can be seen that there are a number of principles that run like a thread between all the normative sources mentioned above:
    • Legitimacy - Is the purpose for which the employer violates the employee's privacy essential to the work?
    • Relevance - Is the chosen means relevant for the purpose of achieving the goal?
    • Proportionality - Has the alternative been chosen, which leads to the least possible violation of the employee's privacy?
    • Due process - Did the employer allow the employee to voice his position on the matter? Alternatively, in organized places, was there a dialogue process with the workers' organization on the matter?
    • Consent and Transparency - Did the employer inform the employee of the possibility of a violation of his privacy or did he receive his consent to the violation? To the extent that the employer received the employee's consent, is the consent sufficient for the purpose of violating the employee's privacy?
82. As can be seen from the legal review, all of these principles are at the heart of all cases dealing with the violation of privacy, but the difference between the application of these principles varies from case to case according to the circumstances of that case and the legal question that derives from it. Now we must examine how these principles should be applied in a case such as the case before us - the case of the installation of cameras in the workplace.

• From the general to the individual

83. At the outset, we would like to focus on the question before us as defined in the decision on accepting the positions of those who submitted the position in this proceeding, which is, as stated: "In what cases will the installation of cameras in the workplace, for ostensibly justified reasons from the employer's point of view, establish entitlement to severance pay for an employee who resigns due to the installation of the cameras?".
84. The Regional Court's ruling in the judgment means that in any case in which an employer installs cameras in the workplace, when the cameras are adjacent to a certain employee's work station, this will establish the right of the employee to resign legally dismissed. In our opinion, this result is an extreme result, as it creates a chilling effect for the employer to protect its interests and sometimes even those of its employees.
85. Placing cameras in the workplace, like other surveillance measures, may in some cases be used for proper purposes. Thus, among other things, the cameras may serve legitimate purposes of the employer, such as preventing incidents of theft, breaking into the place of business, etc.  In addition, the cameras may also protect the employees, since not only are they likely to document incidents of violence, sexual harassment, etc., but they also have a deterrent element and thus may prevent such incidents.
86. At the same time, we must balance between the employer's right to property and the employee's right to privacy in the workplace. It should be noted that creating a cooling effect for the installation of cameras in the workplace may even harm the employer's obligation to maintain a proper, proper and free work environment that may harm the employee's welfare.  Therefore, we are of the opinion that it is correct to determine tests that are met when an employer places cameras in the workplace will be viewed as a tangible deterioration in the conditions of employment or other circumstances in an employment relationship in which the employee should not be required to continue his work in a manner that entitles the employee to resign legally from dismissal.
87. In this regard, it should be noted that section 11(a) of the Severance Pay Law establishes two alternatives with respect to an employee's entitlement to resign under the law of dismissal, one in the event of a tangible deterioration in the employee's employment conditions and the other in the case of circumstances for which the employee should not be required to continue his employment. Although the determinations cited above relate to the first alternative, since Ms. Elkaner argued for this alternative, this does not block the way for an employee to make similar claims with respect to the second alternative.
    • 1. Installation of Cameras and the Employee's Right to Resign in the Law of Dismissal
88. When we come to examine what are the correct tests for the purpose of discussing this question, we have found it appropriate to keep in mind the case of Isakov. The tests set forth in this judgment provide a correct starting point in our opinion for the purpose of examining the limits of an employee's privacy in the workplace.  However, we must note that in the Isakov case, the court discussed, as stated, the manner in which the materials collected in connection with the surveillance of the employee can be used, while in our case we must examine the limits of privacy for the very placement of the cameras, when at this stage the employer has not made any use of those materials.
89. In the first stage, we are required to examine the reason for the installation of the cameras and to examine the question - was the placement of the cameras done for legitimate reasons and for a proper purpose? In cases where the cameras were installed for reasons that are not legitimate in themselves, this will suffice to determine that there is a tangible deterioration in the terms of employment of an employee, and there is no need to examine additional circumstances, such as the degree of the employee's consent or knowledge, in order to reach this conclusion.
90. It should be noted that to the extent that the installation of the cameras was done for illegitimate reasons, the employee may be entitled to additional remedies by virtue of the duty of good faith in employment relations and by virtue of additional duties recognized in case law. We found it appropriate to note in this context that as of the date of publication of the judgment, claims based on the Protection of Privacy Law are not within the jurisdiction of the Labor Court, and therefore the Labor Court is not authorized to grant relief due to the violation of privacy by virtue of this Law.  We are of the opinion that the legislature would do well to correct this situation, which limits the ability of the courts to grant employees remedies by virtue of the law in these cases, and thus creates a procedural split that complicates proceedings of this kind.
91. To the extent that we have crossed this hurdle, and in accordance with the legal review detailed in detail above, we are of the opinion that we must first examine the proportionality of the use of the means chosen by the employer and the relevance for the purpose of achieving the goal he tried to achieve. In other words, if we take the issue of the installation of the cameras, for example, we must examine whether the placement of the cameras was done proportionately or whether it was possible to perform the same action in a way that would reduce the degree of harm to the employee, and at the same time examine whether the means chosen by the employer is relevant to the goal it tried to achieve.
92. These tests are intended to examine the extent of the injury caused to the employee. Together, these two tests define whether the harm was low or high, based on the assumption that in each such case there is a certain degree of violation of the employee's privacy, but this violation will not necessarily establish entitlement to resignation under the law of dismissal.
93. It is important to note that these tests range across a spectrum and the result of these tests is not binary in the sense that it is possible that in examining the case that comes before the court there will be a number of alternative options, each of which is more proportionate or less proportionate and in the same way more relevant or less relevant. When it comes to examining the proceeding before it, the court must examine where we are on the same spectrum.
94. Determining the extent of the injury to the employee can be attributed to various elements that tipped the scales one way or the other. For example (and this is not a closed list): Was the camera placed in a public area or in a private area? Does the camera only take pictures of the employee or other parts of the office? Does the camera include audio recording or not? Are the footage accessible to the employer or security company? If the photographs are accessible to the employer, the question also arises, who in the employer can access them? In addition to all this, it is important to note that the very placement of cameras on its own, whether the answers to the following questions are positive or not, constitutes a severe violation of the employee's privacy.
95. In addition, we note that in addition to the aforementioned questions, it is possible that the employee's personal data will also affect the degree of the injury. Thus, for example, the seniority of the employee in the case in question is also significant, when it is clear that the degree of injury of an employee who has been working for a long period may be higher than that of a new employee.  In addition, there is a difference between a case in which a change was made during the period of an employee's employment and a case in which the installation of cameras was done prior to the beginning of his employment.  Specifically, this is a consideration that carries weight within the framework of a wide range of relevant considerations.
96. An additional impact on the degree of the injury may also be the employer's conduct close to the date on which the cameras were installed. Conduct with cleanliness and good faith on the part of the employer, with the participation of the employee, transparency, etc., is weighty as it ensures that the placement was done in a proper procedure.  Due process realizes the value of human dignity and is also a guarantee of reducing the risk of mistake in the decision.  Therefore, this matter must also be taken into account when examining the extent of the injury to the employee.
97. In accordance with the results reached by the tribunal in examining the extent of the harm to the employer's actions, the degree of consent required on the part of the employee to install the cameras must be examined, so that the more severe the injury to the employee, the employer will have to obtain the employee's explicit consent to the installation of the cameras, while in the case where the harm is less sufficient, the employee will be informed of the installation of the cameras.
98. This assertion can be anchored, inter alia, by way of analogy, in the provisions of the Protection of Privacy Law. Section 3 of the Law defines consent as "informed consent, explicit or implicit", i.e., that the consent of the person whose privacy has been violated ranges on the same spectrum as we have referred, between explicit consent and notification, with the nature of the required consent depending on the circumstances of each and every case.  Admittedly, as stated, it is not within the authority of the labor courts to hear claims by virtue of the Protection of Privacy Law, but in our opinion, it is correct to turn to the law for the purposes of interpretation.  This is based on the rule that "the interpretation of a law shall be made in accordance with the existing legislative fabric on the same subject" [see: Additional Civil Hearing 5783/14 Lior Zemach v.  El Al Israel Airlines in Tax Appeal (September 12, 2017) and the references therein].
99. To be sure, explicit consent will not always suffice, and this depends on the circumstances of each and every case. As we noted above, the employee's degree of consent must also be examined taking into account the inherent power gaps that exist in the employee-employer relationship and taking into account the difficulty that the employee has in refusing to install the cameras, out of concern that refusal will cost him the loss of his job or non-acceptance of employment [Labor Appeal (National) 23901-07-23 Transportation and Tourism Axis in a Tax Appeal - Tova Dahari et al.  (October 30, 2024)].  It should be clarified that at the end of the spectrum of the extent of the infringement, there may be cases in which the violation of the employee's privacy will be so severe that even the explicit consent of the employee cannot cure the violation, for example, in the case of placing cameras in a restroom, since it is inconceivable that such a severe violation of privacy is inconceivable even when the employee allegedly "consented" to such an infringement.
100. This is true even when we are talking about a candidate for the workplace and it is the employer's duty to bring to the attention of the candidate the fact of the existence of cameras in the workplace. Even in the case of hiring, the employer is required to inform the employee of the existence of cameras to the extent that the violation is at the low threshold of the violation of the employee's privacy, while the infringement is at the higher level, the employee's clear knowledge of the existence of cameras is required, whether by means of an appendix to the employment contract or by any other means that will show that the employee is clear about the work environment he is entering into.
     • 2. Interim Summary
101. To summarize this section, the following are the steps for examining the question "Does the placement of cameras constitute an invasion of the employee's privacy":
     • The first stage - legitimacy and proper purpose - at this stage, the court must examine whether the reason for the installation of the cameras is legitimate in itself, and if the answer to this is negative, the employee will be entitled to resign by law, and it is even possible that he will be entitled to additional remedies as stated above. If the answer to this is yes, we will move on to the second stage.
     • Stage Two - The Degree of Infringement - At this stage, we must examine the extent of the violation of the employee's privacy, and for this purpose the court must examine the placement of the cameras against tests of proportionality and relevance in relation to the reason for the placement of the cameras. In examining the extent of the injury, the employee's personal data must be taken into account, as well as the employer's conduct when installing the cameras.
     • Third stage - balancing against the employee's degree of consent - Depending on the outcome reached by the tribunal regarding the degree of violation of the employee's privacy, it must examine the degree of consent required in that case, when a more significant violation will lead to a demand for more explicit consent.
102. In order to illustrate the balance between the second and third stages, see a diagram designed to illustrate the parallelism of forces in the application of the tests.
     • 3. Application of the Tests to Our Matter
103. In its ruling, the Regional Court examined the matter from the point of view that it accepts the employer's version as to the reason for which the cameras were installed. We accept the starting point that the Regional Court determined for the purpose of the hearing, according to which the employer installed the security cameras for legitimate reasons - attempts by the employer to prevent incidents of sexual harassment or alternatively to document such incidents as they occur.  This point of departure is a factual determination in which we have not found room to intervene.  Therefore, we must examine the proceeding in light of this situation.
104. According to the employer in her statement of defense filed in the Regional Court, the installation of the cameras was done after an incident of sexual harassment complaint and with the aim of documenting and eradicating such incidents. For this purpose, according to the employer, 9 cameras were placed in the area of the employer's offices, which are spread over an area of 550 square meters (paragraphs 11-15 of the statement of defense).
105. In examining the relevance of the placement of the cameras in light of the purpose for which they were placed (the prevention of sexual harassment), it does appear that there is relevance, but as stated, in examining the degree of the relevant infringement, it is one test and in examining the overall fabric of the degree of harm as we defined above, this does not detract from the degree of violation of Ms. Elkner's privacy, as we will detail now.
106. As noted, two of those nine cameras were placed in the foyer of the employer's offices, where Ms. Elkner's work station was located. A review of the appendices to the statement of defense shows that the two cameras were aimed so that one of the cameras photographed the front of the work post and the other the back (Appendix B to the statement of defense). According to the employer, as can be seen from the photos, Ms. Elkaner's position is photographed as part of the public area, with the work station clearly visible, as is Ms. Elkaner herself.
107. As we noted, Ms. Elkaner was not updated on the placement of the cameras before they were installed, and she first found out about it when the installers arrived. Elkaner then contacted her employer and asked to remove the cameras, which was refused. At this point, we would like to stop, because in an examination of the employer's conduct and in relation to the examination of the severity of the injury, it is not clear that the employer's insistence is not to at least examine the possibility of removing these two cameras, or alternatively, to place them in such a way that Ms. Elkaner's work station will be less clearly visible in the footage.
108. It is possible that the more the employer had informed Ms. Elkaner about the placement of the cameras before they were installed, this would have made the discussion redundant, and it is even possible that it would have prevented the parties from reaching the situation we find ourselves in today. However, in the employer's refusal to move these cameras, or at least to examine them, the employer acted disproportionately in the manner in which the cameras were placed. As stated, the conduct of the employer constitutes an additional layer in examining the degree of the injury, and in our case, the conduct of the employer clearly led to the harm to Ms. Elkner.
109. In addition to the aforesaid, as stated, we have found it appropriate to give weight to the duration of Ms. Elkaner's employment with the employer, since there is no doubt in our hearts that the installation of cameras in which the work station of an employee who has been employed for such a long period of time constitutes a significant violation of the terms of her employment, and at the very least constitutes a change in circumstances for which she could not be expected to continue in the workplace.
110. From all of the above, we have reached the conclusion that the degree of violation of Ms. Elkaner's privacy was high. In light of this conclusion, we found that in this case, Ms. Elkaner's explicit consent was required to install the cameras.
111. As noted, Ms. Elkaner did not give her consent to the installation of the cameras and even explicitly objected to it. Hence, we are of the opinion that the very placement of the cameras should indeed be viewed as a tangible deterioration in the conditions of its employment. We note that we accept the Court's rulings regarding the connection between the installation of the cameras and Ms. Elkner's resignation.  Therefore, and in light of the additional rulings of the Regional Court in the matter, we found that the conditions set forth in section 11(a) of the Severance Pay Law are met.
112. Therefore, we find that the employer's appeal in this matter should be rejected.

• The Counter-Appeal

113. As we noted at the beginning of our discussion, we found that the counter-appeal should be dismissed.
114. First, we note that an examination of Ms. Elkaner's arguments shows that most of her arguments are arguments against the factual determinations of the Regional Court. As is well known, the rule is that the appellate court does not tend to intervene in factual determinations except in extreme circumstances that do not exist in our case [Civil Appeal 7426/14 Anonymous v.  Uri Daniel (March 14, 2016); Labor Appeal (National) 424/06 Sharet Kitchens in Tax Appeal - Yelena Grocholsky (August 2, 2007)].
115. A review of the judgment shows that the Regional Court conducted a comprehensive analysis of the evidence in the proceeding, while addressing the arguments of the parties. The Regional Court ruled that no support was found for Ms. Elkaner's claims of abuse on the part of the employer.  Moreover, we accept the Regional Court's determination that the mere placement of the cameras in this case did not amount to abuse in a manner that entitles to any compensation for this component.
116. Elkaner's claim to entitlement to the annual bonus as stipulated in her employment contract is also liable to be rejected. The entitlement to the bonus is a contractual right, and contrary to Ms. Elkaner's claim that this bonus was not contingent on anything, a reading of the clause relating to this matter in her employment contract shows that the entitlement is realized only after the completion of 12 consecutive months of employment, starting from April 1 of the relevant year.  Since Ms. Elkaner did not complete the 12 months of employment as aforesaid, even though her resignation entitles her to severance pay, this does not establish her entitlement to a bonus since the section explicitly states the conditions for entitlement, and these, as stated, were not met.
117. Friedman's statement in the course of the evidentiary hearing that the payment of the bonus was not conditional does not raise or detract from the language of the clause and does not require any interpretation.  Moreover, a review of the minutes of the hearing shows that Dr.  Friedman's answer was given regarding the question of whether the amount of the bonus was derived from the company's profits.  It does appear that the amount of the bonus was fixed, but this does not change the fact that the very entitlement to the bonus was contingent upon the completion of the relevant period.
118. As to Ms. Elkaner's argument regarding the withholding of severance pay, we find that we accept the ruling of the Regional Court, which rejected this component of the claim on the grounds that there was an authentic dispute between the parties, and therefore the employer's obligation should not be attributed to the non-payment of severance pay.
119. In light of the aforesaid, the counter-appeal is to be dismissed.
120. Conclusion
121. The appeal and the counter-appeal are dismissed.
122. The appellants and the counter-respondents will pay together and severally to Ms. Elkaner the sum of ILS 10,000 for legal expenses and attorney's fees for this proceeding.

A declaratory judgment was given today, March 26, 2025, in the presence of the parties.