Snooping on staff

Where there is already suspicion that an employee on sick leave is not being truthful, an employer is entitled to conduct surveillance. This could be to ascertain whether an employee is sick at all, or simply the extent of an injury. The decision to take such measures should not be made lightly and a number of factors should be considered.

Covert surveillance is best as a final resort to confirm existing concerns. 'Strong suspicion' is the key phrase; surveillance should be used to gain final proof of evidence already obtained rather than as a fishing exercise. If an employee is allegedly seen taking part in a football tournament while claiming a serious back condition, then the use of surveillance may be warranted.

A tribunal is likely to accept evidence from surveillance if it shows the action was taken to protect the assets of the business, for example, to disrupt fraudulent activity. Careful consideration should be given to exactly how, where and for how long surveillance will be carried out, in order to help avoid allegations of breach of human rights and constructive dismissal claims.

Surveillance carried out in a public place is unlikely to be regarded as an infringement of privacy. Hiring an investigator to gain access to an employee's home under false pretences in order to record conversations is likely to be seen as a step too far. A tribunal will set the right to privacy against the seriousness of the alleged offence to determine if the intrusion was necessary to counter any wrongdoing by an employee.

The Human Rights Act provides somebody the right to respect for their private and family life. The right to privacy does not apply in a situation where the measures taken were necessary for the prevention of disorder and crime. The onus here would appear to be the ability for the evidence to prove the necessity for the surveillance. If surveillance does indeed prove the fraud, then, it will be seen as an acceptable method. However, if the surveillance is inconclusive, would the method, once tested, be seen as obstructive and unacceptable although in both circumstances, the initial aim was the same?

Obligations under the Act are limited to public authorities. Tribunals have demonstrated they will take the provisions of the Act into account when interpreting other legislation. Recent case law underlines the importance of following the correct disciplinary procedure in such cases. Failure has damaged the defence of the respondent company even if the surveillance appears to provide incriminating evidence. If a disciplinary hearing is to be held, make sure the employee is aware of all allegations and is able to avail themselves of proper representation. It is also advisable to seek medical advice to corroborate the 'proof' on video.