ISRAEL Trends and Developments Contributed by: Dafna Shmuelevich, Eran Shoham, Zohar Geva and Ayal Erez, Dafna Shmuelevich & Co
left the workplace and subsequently filed a claim asserting constructive dismissal. She argued that the surveillance constituted an unlawful and continuous infringement of her privacy, resulting in a material deterioration of her employment conditions that enti - tled her to severance pay and related benefits under Section 11 of the Severance Pay Law. The Regional Labour Court ruled in favour of the plain - tiff, finding that the employer’s actions amounted to a severe violation of her right to privacy. The Court deter - mined that the resignation constituted constructive dismissal and awarded her severance in the amount of NIS500,000. It emphasised the lack of informed consent and the employer’s refusal to remove or repo - sition the cameras after objections were raised. The employer appealed, contending that the lower court’s ruling unduly restricted the employer’s man - agerial authority and ability to maintain workplace security. While the National Labour Court ultimately upheld the result ‒ denying the appeal and affirming the award in favour of the employee ‒, it rearticulated the legal reasoning, introducing a multifactorial bal - ancing test to govern future cases involving workplace surveillance. Key legal principles established The National Labour Court clarified that not every instance of workplace surveillance constitutes con - structive dismissal. Instead, the analysis must con - sider whether the employer’s conduct resulted in a material deterioration of the employee’s working conditions. The Court outlined the following guiding criteria. • Legitimacy of purpose: surveillance must be con - ducted for a legitimate and reasonable objective. • Proportionality: the scope and manner of surveil - lance must be proportionate to the stated purpose, with less intrusive means preferred. • Degree of harm to privacy: factors affecting harm include: (a) whether surveillance captures only the employ - ee or a broader area; (b) presence or absence of audio recording; and (c) who has access to the recordings and under what conditions.
• Employee-specific factors: the length of employ - ment and employee status may increase the sensitivity of the privacy intrusion. Changes made during employment are more problematic than pre- existing conditions disclosed at the time of hiring. • Employer conduct and transparency: consent and consultation are critical. The obligation to inform, and in some instances obtain explicit consent, depends on the severity of the intrusion. The Court held that although the employer’s motive ‒ workplace safety ‒ was legitimate, the implementation was flawed. The surveillance was targeted and con - tinuous, the employee was not informed in advance, and her explicit objection was disregarded. The failure to engage in a meaningful dialogue or explore alterna - tives rendered the employer’s conduct unreasonable and invasive. The lack of consent, in the context of prolonged employment and targeted filming, consti - tuted a material breach of contract. The Court upheld the finding of constructive dismissal and entitlement to severance. The judgment estab - lishes a controlling precedent in Israeli labour law, requiring employers to carefully assess the neces - sity, scope, and method of workplace surveillance in light of employee privacy rights. Explicit consent is required in cases of continuous, targeted monitor - ing, especially when it involves senior or long-serving employees. Risks Associated with the Broader Certification of Class Actions by Israeli Labour Courts Class actions in the field of labour law serve as an essential mechanism for enforcing employee rights in a non-unionised workplace. It offers a strong financial incentive for employers to adhere to labour regula - tions, while encouraging employees to assert their employment entitlements. Nonetheless, this powerful tool also carries significant legal and economic risks, among them an escalation in excessive litigation and increased defence costs for employers. In Israel, class actions follow a two-stage process, beginning with the certification of a class action, fol - lowed by an examination on the merits. Historically, the labour courts tended to decertify employment- related class actions, which led many proceedings to
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