Covert monitoring of employees

I have spoken to many frustrated HR professionals who cannot shake the feeling that an employee’s sick note is not quite accurate. A “fit note” signed by the employee’s GP can be very difficult, if not impossible to challenge. The use of covert surveillance can seem very tempting as a way of verifying whether an employee is really ill and this article considers the risks of doing so and the circumstances in which it is more likely to be justifiable.

Will use of covert surveillance make a dismissal unfair?

The Employment Appeal Tribunal (EAT) considered this question recently in the case of City and County of Swansea v Gayle [2013] IRLR 768 and found that the use of covert surveillance did not, of itself, make a dismissal unfair.

Mr Gayle was seen on a number of occasions at a local sports centre, whilst still clocked into work and having represented to his manager that he was at work. The council hired a private investigator who covertly filmed Mr Gayle outside the sports centre on five subsequent occasions during working hours and whilst “clocked-in”. The council dismissed Mr Gayle who then claimed unfair dismissal, among other things.

The EAT found that Mr Gayle’s dismissal had been fair and that the use of covert surveillance did not automatically make the dismissal unfair. The EAT found that the reasonableness of the investigation should be considered in the context of the decision to dismiss. Here the EAT considered that what was important was whether the manner of conducting the investigation had an effect on the decision to dismiss Mr Gayle.

Human Rights Act 1998 and Data Protection Act 1998

The EAT in Gayle dismissed the idea that covert surveillance had breached Mr Gayle’s Article 8 right to privacy. This is because Mr Gayle was filmed in a public place and was a fraudster, so could have no reasonable expectation of privacy. The EAT also found that the council had not breached the Data Protection Act 1998, as clarified in the Employment Practices Code (a copy of which can be found here), in filming Mr Gayle in a public place. In addition the EAT made a clear statement that the Employment Practices Code is not mandatory and has no statutory force.

However, it is important not to take this decision as a green light for using surveillance. Covert surveillance as part of a disciplinary investigation will not always be proportionate or reasonable, and employers should only resort to it in exceptional cases. The Information Commissioner sets out in the Employment Practices Code that it will be rare for covert monitoring of workers to be justified. Employers should therefore only use it in exceptional circumstances and not in areas in which employees would generally and reasonably expect to be private. Particular caution should be exercised by public sector employers, to whom the Human Rights Act applies directly (rather than indirectly as with private bodies).

Sickness cases

In the 2011 case of Pacey v Caterpillar Logistics Services (UK) Ltd ET3501719/10 the Employment Tribunal upheld Mr Pacey’s unfair dismissal claim, following Caterpillar’s reliance on video surveillance to dismiss him for falsely claiming sick pay. Mr Pacey had injured his back at work and had been signed off sick for a month by both Caterpillar’s occupational health doctor and his own GP, both of whom assessed him as being unfit for work.

Caterpillar and its insurers suspected that Mr Pacey’s injury was not genuine. The insurers arranged for an investigator to conduct covert surveillance of Mr Pacey. Mr Pacey was filmed clearing ice from his car, driving his car, carrying shopping and walking his dog.

Caterpillar decided that Mr Pacey’s claim of being too ill to work was exaggerated and false and dismissed him for gross misconduct. Mr Pacey brought a claim for unfair dismissal. The Tribunal upheld the claim. It was important in this context that Caterpillar had not asked its occupational health doctor, or Mr Pacey’s GP, to review the film. The decision to dismiss Mr Pacey was based on inexpert consideration alone of the film.

Top Tips

In general, covert surveillance should be the option of last resort.

In sickness cases:

• arrange for a home visit by HR in order to better assess the employee’s state of health;
• arrange for the Company’s occupational health expert to give a second opinion if you are not convinced by the employee’s own doctor’s assessment that he or she is unfit for work; and
• if you do decide to seek covert surveillance ensure that it is only conducted in public places and is assessed by a medical expert as regards any conclusion being made as a result of the footage.

In conduct cases:

• collect oral evidence;
• collect documentary evidence; 
• consider in light of the evidence already gathered, whether it is proportionate and reasonable to also conduct surveillance; and
• ensure that surveillance is carried out in a public place.