Employer’s need to know what is going on and the ability to gather evidence is crucial, particularly where there are concerns as to whether an employee is fulfilling his duties properly or there is a suspicion that an employee is falsely absent from work. Employers are increasingly turning to private investigators to monitor staff outside of the workplace. Employees are able to capture images or record conversations on their mobile phones which they might use in claims of bullying, harassment or discrimination. But will such evidence be admissible in tribunal proceedings, or is it a breach of human rights?

Two rights made law under the Human Rights Act 1998 are likely to impact in particular. Article 8 provides individuals with the right to respect for their private and family life, and everyone should be guaranteed the right to a fair trial under Article 6. Broadly, an employee can only bring a free standing claim for breach of the Human Rights Act against his employer if the employer is a public body. However, an Employment Tribunal can be asked to ensure that an employee’s human rights have not been infringed by any employer as part of another claim against the employer, such as breach of contract, unfair dismissal or discrimination.

All employers should therefore bear human rights in mind when investigating employees, and Tribunals must balance the rights under Articles 6 and 8 when considering admissibility of evidence.

What does recent case law tell us?

Case law suggests that tribunals are prepared to admit secretly obtained evidence, particularly if that evidence is likely to be damning. If there is a risk that publication of the evidence will breach someone’s rights under Article 8, the tribunal may use its powers to consider the evidence in private.

1. Forsyth v Eton (2005)

Sarah Forsyth was the Eton College art teacher who secretly taped a conversation she had with Prince Harry when she thought she was being bullied out of her job. Although the tape was not played in Tribunal, its contents were described by Ms Forsyth. The Tribunal said that the recording was “clearly an abuse of the position of trust in the pupil-teacher relationship” designed to put pressure on Eton during her negotiations with them for a contract renewal. Although Ms Forsyth was criticized for her behaviour, she was still successful in one out of her two claims for unfair dismissal.

2. McGowan v Scottish Water (2005)

[See www.hrlaw.co.uk article: Covert Surveillance – snooping on employees held not to be in breach of Human Rights]

Scottish Water used covert video evidence of Mr McGowan’s movements to and from his house over a period of one week to confirm its suspicions that Mr McGowan was falsifying his time sheets. Mr McGowan claimed unfair dismissal on the basis that his rights under Article 8 had been infringed.

The EAT decided that there was a breach of Article 8, but Scottish Water’s actions were proportionate. Importantly, Scottish Water had considered other possible means of monitoring the employee, but concluded these were impractical and ineffective, and this made the use of covert material more acceptable. Further, there was a risk to the public if Mr McGowan did not perform his duties properly. Finally, the EAT placed great emphasis on the fact that Scottish Water’s suspicions were potentially incriminating and were found to be true.

3. X v Y and Z (2003)

X, a nanny employed by Y and Z to look after their son J, used covertly recorded video evidence of J’s father making sexual advances towards her in the presence of J as evidence in her claims for sex discrimination and victimisation. The EAT decided that if the tape were played in public its contents would be described by the media, and there was a chance it could end up on the Internet. This would infringe the child J’s rights under Article 8. However, X was entitled to a fair trial under Article 6 and the video was necessary to protect this. The EAT decided that the tribunal should view the video in private to prevent a breach of Article 8.

4. Jones v University of Warwick (2003)

A suspicious employer engaged a private detective to monitor an employee on sick leave. The detective gained entrance to the employee’s home by pretending to be a market researcher, and took pictures showing that the employee was not disabled. The employee successfully claimed breach of her right to privacy, but could not prevent the pictures from being shown as evidence.

When can an employer snoop?

There is a high risk that carrying out surveillance on any staff will breach the Human Rights Act. Covert surveillance may also be a breach of the employment contract: it shows a real lack of trust on the employer’s part, which could give rise to a constructive dismissal claim. However, covert recordings are more likely to be admissible and justifiable in the following circumstances:-

• Where there are strong suspicions of serious misconduct.

• Where there is no effective but less intrusive means of doing so.

• In order to prevent damage or loss to the public.

• Where the evidence clearly shows a serious breach by the other party.

• Where written records of the decision-making process sanctioning the monitoring are kept.

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