Surveillance of employees on sick leave 


The use by employers of covert surveillance footage is a growing feature of disputes over sick leave and sick pay. The footage usually aims to prove that the illness or injury is not genuine. 


A dismissal can be fair even though surveillance evidence is used. However, employers who rely on this type of footage risk making stereotypical and discriminatory assumptions about illness and disability by, for example, assuming someone cannot have a serious impairment just because they are captured on film carrying out a normal day-to-day activity such as shopping. 


It is up to the tribunal to decide how much weight to give this kind of footage (Pendragon Motor Co v Ridge EAT/962/00). Here is an example:


An employee caught on video surveillance engaged in activities such as walking freely or carrying shopping, while on the same day telling their occupational health adviser they could not do these activities, or could only do them with difficulty, was fairly dismissed for gross misconduct (dishonesty) in the case of Metroline West Limited v Ajaj [2016] UKEAT/0185/15/RN. 


An employer should ask a health professional for their expert view of surveillance evidence before relying on it. As with any other evidence, the employee must be given a proper opportunity to view the evidence and put their side of the story. 


There is no general right to privacy when covert surveillance takes place in a public place where people would have no normal expectation of privacy, such as a shopping centre (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN). 


Covert surveillance is governed by the Data Protection Act 1998 and by Part 3 of the Information Commissioner’s Code of Practice: Monitoring at work. The Code is non-statutory, and does not create legal obligations. Since employers are not obliged to follow it, a breach of the Code will not make a dismissal unfair (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN).


For information on the factors likely to be taken into account when deciding whether a dismissal involving covert surveillance is fair, see page 329 of Chapter 10. 


Doing paid work for another employer during the working hours for which sick pay is being paid without the employer’s permission is likely to be gross misconduct justifying summary dismissal. See further, Chapter 10: Dismissal.