The US media have reported a number of instances in which companies have hired private detectives to spy on workers taking “sickies”. Surveillance in these circumstances will often be defensible, the US courts having decided that “reasonable suspicion” is sufficient justification. But what is the position in the UK?
In the UK the covert surveillance of employees outside the workplace may engage the employee’s Article 8 rights and give rise to a cause of action by the employee for misuse of private information. If the employee is dismissed in consequence of the covert surveillance, the surveillance may render unfair a dismissal that would otherwise have been fair. Alternatively, if an employee discovers that they have been the subject of covert surveillance, they may resign and claim constructive dismissal based on a breach of the duty of trust and confidence owed by the employer.
While each case will depend on its facts, certain principles will be of general application.
First, any surveillance must have a proper and reasonable justification. This will usually mean that the employee is suspected of some serious breach of his contract or employment duties such as failing to attend work without a proper excuse or endangering public health or safety (e.g. a bus driver visiting the pub before starting his night shift).
Second, the employer must have reasonable grounds for the suspicion. Speculation that the employee is up to no good, or suspicion based on workplace gossip alone, is likely be insufficient justification for a breach of the employee’s Article 8 rights even if the speculation or rumours later turn out to be correct. The proper investigation of any allegation, which should include giving the employee an opportunity to respond to allegations before any disciplinary action is taken, is key to a fair dismissal and to avoiding costly claims.
Third, the employer needs to satisfy itself that surveillance is necessary to achieve its legitimate aims. If other less intrusive means are available to the employer (e.g. document reviews or workplace monitoring), those means should be adopted first. Again, however, employers should consider whether workplace monitoring will infringe an employee’s right to privacy or breach the duty of trust and confidence owed to an employee. Guidance is set out in the Information Commissioner’s Office Code on Employment Practices.
Fourth, the degree of surveillance needs to be proportionate to the intended purpose of the surveillance. It is unlikely, for example, to be proportionate to place the employee’s family members under surveillance.
Fifth, it is advisable for the employer to alert employees in advance to the possibility that surveillance may be used in exceptional cases. The potential use of surveillance may be mentioned in the employer’s disciplinary policy or it may be mentioned specifically to the employee in a case where malingering or other misconduct is suspected or under investigation.
In McGowan v Scottish Water the Employment Appeal Tribunal (EAT) held that the filming of the home of an employee suspected of falsifying time sheets was justified, despite the fact it amounted to a breach of his privacy. Mr McGowan lived in a tied property close to the water plant he was responsible for monitoring. Scottish Water suspected that he was not attending the plant as often as he claimed on his time sheets. Private investigators were commissioned and secretly filmed Mr McGowan from outside his property. This surveillance was considered to be justified and proportionate by the Tribunal (and subsequently by the ETA) despite th efact that Mr McGowan’s father had died during the surveillance meaning his movements during this private bereavement time were secretly monitored.
Similarly, in the recent case of McCann v Clydebank College a part time employee was filmed without his knowledge as his employer suspected he was breaching his contract by working another job while receiving company sick pay. Clydebank College instructed inquiry agents who filmed both Mr McCann’s home and the garage at which it was claimed he was working. The footage from the garage confirmed their suspicions (the footage from his home was not relied upon) and the employee was dismissed. The EAT concluded that surveillance was proportionate in that situation. However, it went on to say that it would not have been legitimate if the employer had gone further than was necessary to prove the point.
However, Tribunals have shown some reluctance to entertain evidence of surveillance in dismissal cases. The Tribunal in Barrett v London Underground upheld an employee’s unfair dismissal claim where he had been caught on camera playing squash while on leave from work due to an ankle injury. He successfully argued that his GP had advised that he exercise to speed the recovery of his injury and was awarded £10,000. This emphasises the importance of investigating allegations made against an employee, including obtaining an employee’s comments on the allegations, even if evidence against them suggests a clear cut case.