Surveillance of employees on sick leave

The use by employers of covert surveillance footage is a growing feature of court and tribunal cases involving disputes over sick leave and sick pay, and over accessing ill-health retirement benefits. The footage usually aims to prove that the employee is not genuinely ill or injured. A dismissal can be fair even though surveillance evidence is used. However, employers risk making stereotypical and discriminatory assumptions about illness and disability when relying on this kind of footage, by, for example, assuming that someone cannot have a serious mental impairment if 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:

There is no right to privacy where covert surveillance takes place in a public space (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 has the status of guidance only and does not create legal rights. Since employers are not obliged to follow it, a simple breach of the Code cannot 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 291 of Chapter 10.

Doing paid work for a third party during working hours while on sick leave and claiming sick pay without the employer’s permission is likely to be gross misconduct justifying summary dismissal (McCann v Clydesbank College [2010] UKEATS/0061/09). See further, Chapter 10: Dismissal.