LRD guides and handbook May 2015

Law at Work 2015

Chapter 7

Surveillance of employees on sick leave

[ch 7: pages 223-224]

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:

Mr McCann worked part-time as a college lecturer in motor engineering and part-time at a garage he owned. He was signed off sick from the college with stress and hypertension. Private investigators hired by the college watched his home and garage daily over one week and produced a DVD showing him working at the garage. He was dismissed for gross misconduct and brought a tribunal claim. The EAT ruled that the secret use of private investigators in this case was “proportionate”, and not a breach of his human right to privacy. The dismissal was fair.

McCann v Clydebank College [2010] UKEATS/0061/09

www.bailii.org/uk/cases/UKEAT/2010/0061_09_1706.html

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.