Posted on Categories contract termination, monitoring

A mystery shopper is not always useful in dismissing an employee

Entrepreneurs have long been aware that they can gain advantage over competitors, not only through the high quality of their products or services, but also by managing customer satisfaction. Whispered marketing is a powerful brand image building tool nowadays, and a firm’s success is increasingly dependent on the number of “likes”, stars, and other forms of customer recognition it has achieved on social media. One negative opinion, if repeated and passed on sufficiently frequently, can effectively undermine long-term marketing and PR achievements. This is why firms attach great importance to proper customer service.

It is not practical, though, for an entrepreneur to look over each employee’s shoulder (it would not make much sense, as such employees usually then take the trouble to be diligent in carrying out their duties). This is why the use of mystery shopping has become popular among firms. A mystery shopper’s task is to pretend to be an ordinary customer to the employer’s staff, and to check whether the firm’s procedures are being followed, in the extent specified by the employer. The establishment’s staff are obviously unaware that they are taking part in an evaluation, and that their reactions are subject to assessment, which ensures that the results of the research will be objective. The research may cover, in particular, customer service, store cleanliness, or how goods are being displayed. The outcome of a mystery shopper’s visit is a report for the requesting firm on flaws that have been identified.

This method of evaluating quality of work is most often used in food service and catering, hotels, retail, banking, but also in public institutions. A negative assessment given by a mystery shopper to an employee usually means a reduced (or even withdrawn) bonus, disciplinary action, or in the worst case, the termination of cooperation with the employee.

Mystery shopping is not directly regulated by labour law provisions, not even in the latest Labour Code amendment on the permissible monitoring of employees. There is a lively debate among lawyers on whether mystery shopping may be regarded as a form of monitoring of subordinate staff or rather, given that it does not involve a continuous or systematic checking of employee conduct, as the employer’s normal supervision, which is not subject to the restrictions that apply to monitoring (restrictions on the objectives of the monitoring and the need to inform staff that it is being used).

So far, no explicit and ready answer has been obtained. It is not to be found in the sparse jurisprudence dealing with mystery shopping. Nor has the President of the Personal Data Protection Office (UODO) presented a clear position. In view of these uncertainties, we recommend that, for the sake of safety, employees should be at least warned that the employer may be checking the quality of their work with the aid of mystery shopping. Appropriate provisions should also be included in the employer’s internal policies (e.g. work regulations) on terms similar to other forms of staff evaluation.

The Mystery Shopping Professionals Association (MSPA), an organisation of mystery shopping firms, also favours informing staff. MSPA’s official guidelines clearly state that the beneficiary of the service should inform its employees in advance that the quality of their work may be evaluated in this way, from time to time, as well as of the impact of the mystery shopping evaluation on the monitored employees’ rights under incentive programmes.

However, the absence of statutory regulations does not mean that employers are completely free to use mystery shopping reports to assess the quality of their employees’ work and use them as a basis for their decisions. Certain restrictions arise from general labour law rules, as well as from existing jurisprudence of labour courts on, among others, the use of provocation with respect to employees.

Without provocation

Labour law requires a termination of an employment contract (including termination with notice, or with immediate effect due to the employee’s culpability) to be based on real, concrete, objective, current and legitimate reasons.  If benefitting from mystery shopping, it is essential to secure objective and justified reasons for a dismissal.

It is up to a labour court to individually assess whether the particular reasons for terminating a given subordinate’s employment are justified and objective. Although it is the subordinate’s behaviour (or negligence) that is subject to assessment, the employer’s conduct may also affect the assessment of whether the termination of the employment merits judicial protection. The use of mystery shopping services constitutes part of a wider discussion on employer’s use of provocation of staff in order to obtain sufficient reasons (and evidence) to terminate cooperation.

In its judgment of 15 November 2017 (III PK 161/16), the Supreme Court spoke out, in essence, against employers’ use of manipulative methods and those that are intentional or have an instrumental purpose, as violating an employer’s general duty of loyalty to employees and the right of employees to work in a “friendly environment”. The Supreme Court permitted measures that check the integrity of employees only in exceptional cases. The ruling related to an employee having been given a “controlled bribe”; however, from the mystery shopper’s perspective, it is worth noting that labour courts issue negative assessments of provocation used to justify an employee’s dismissal (similar conclusions may also be drawn from the judgment of the District Court in Gorzów Wielkopolski of 5 April 2018, VI Pa 85/17). This means that employers should, as a rule, avoid instructing a mystery shopper to intentionally behave in an aggressive, querulous, or any other excessive way that might provoke a specific reaction from employees, which would constitute a reason for dismissal.

The above judgment and the sparse case law dealing with mystery shopping (e.g. judgment of the Regional Court in Lublin of 10 January 2018, VIII Pa 155/17), both also demonstrate that labour courts make a different, more favourable for employees, evaluation of employees’ behaviour in situations that have been staged by the employer. In the above-quoted judgment of the Regional Court in Lublin, the Court of Appeal shared the position of the first instance court that “when assessing the quality and engagement of an employee, account should  be taken first of an assessment of contacts with real customers”. With the above in mind, employers should exercise far-reaching caution when applying disciplinary measures, or basing an employee’s termination of employment solely on a single negative mystery shopping assessment.

The MSPA has also recognised this problem, stipulating in its guidelines that mystery shopping reports cannot serve as the sole justification for staff reprimands or dismissals.

Punishment, but for whom?

The use of mystery shopping evaluations for holding employees later to account, may also lead to specific practical problems. One of them is identifying the person affected by the mystery shopping assessment. An employer may not charge subordinates with “collective responsibility”. Therefore, for a mystery shopping report to be able to constitute evidence against an employee, it must specify the particular person’s improper behaviour. Depending on the report, in particular the way in which the employee who assisted the mystery shopper has been described, it may be difficult or even impossible to identify and hold a subordinate accountable. If employees were wearing name badges, the mystery shopper may directly specify the person who was serving in the report; otherwise, the employer may have to make additional checks of, say, attendance lists, cash reports or surveillance records, in order to verify who should face disciplinary measures.

On the other hand, given the above approach of labour courts to the use of provocation, as well as the need to state objective reasons for a dismissal, employers should also avoid situations in which a mystery shopping assessment is intended to demonstrate a given subordinate’s improper behaviour. As a side note, it is worth adding that multiple checks directed only at a particular person may also expose the employer to a charge of workplace mobbing of that employee.

As can be seen, the use of mystery shopping may be a legitimate and effective way for businesses to monitor the quality of customer service. However, if a mystery shopping evaluation is to be an equally effective tool for monitoring the quality of employees’ work, it has to meet certain requirements.

Katarzyna Magnuska