Human rights-based objections 


The human right to respect for private and family life (Article 8 European Convention on Human Rights) is engaged whenever employers carry out covert surveillance. However, the right to privacy is not absolute. Intrusions on privacy can be justified where they are a proportionate means of preventing disorder, fraud or crime. This would include, for example, false sick pay or insurance claims and time sheet fraud. 


Probably the most well-known employment case involving the right to privacy in the context of covert surveillance is McGowan v Scottish Water [2006] IRLR 167. In this case, the EAT ruled that Mr McGowan’s right of privacy was not breached when the employer posted private investigators outside his home for one week to investigate alleged time sheet fraud. Similarly, in McCann v Clydesbank College [2010] UKEAT 0069/09, the EAT said Mr McCann’s employer did not breach convention rights when private investigators videoed him working at a garage he owned, again for one week, because they suspected him of fraudulently claiming sick pay.


Although McGowan’s case was unsuccessful, the case is important for reps because it shows that there are significant limitations to employers’ freedom to engage in lawful covert surveillance. In particular: 


• covert surveillance can only be justified under the Human Rights Act 1998 (HRA 98) where the issue being investigated is grave and serious, for example, theft or fraud. Covert surveillance for less serious offences at work is likely to breach the right to privacy; 


• the employer should explore all other viable ways of investigating before opting for surveillance. There will often be alternatives that should be considered first;


• the level and manner of surveillance should be proportionate — it should not be a knee-jerk reaction;


• employers should warn in advance (for example, in a policy) that covert surveillance may be used;


• it is probably easier to justify covert surveillance at work than at home, especially if the employer has warned that it might happen; and


• covert surveillance should be strictly time limited.


Covert surveillance that cannot be justified will be a breach of the HRA 98.


There is no general right to privacy in a public space (City and County of Swansea v Gayle [2013] UKEAT 0336/12/2106).


Reps should normally object in principle to the use of any evidence obtained covertly, but it is also important to be realistic, explaining to the member that a tribunal will not normally reject evidence just because it has been obtained covertly, and that a dismissal will not be unfair just because covert evidence has been used. 


The member should be given enough advance notice of any surveillance evidence the employer plans to rely on in their disciplinary to be able to respond to that evidence effectively. The employer should be asked to explain in writing how and why the decision was taken to collect evidence through covert surveillance, how the evidence was collected and what alternatives were explored first. 


If the evidence takes the form, for example, of computer logs showing alleged computer misuse, the employer should explain clearly how the evidence was created and what the various entries mean, and explain, with evidence, how it compares with normal use by other workers. 


The member should be given a copy of any video or audio recording, and a place to view it in private with their rep, at least once, and be allowed to comment on it in the investigation just like any other evidence. 


Reps should monitor the use of covert surveillance evidence and look for patterns that suggest that particular kinds of worker are being targeted unfairly.


It is important to make sure the employer looks at the whole footage or recording — not just the parts that seem to point to guilt. 


Surveillance evidence, especially when used to investigate allegations linked to sickness or injury, can sometimes lead employers to stereotypical, wrong and potentially discriminatory conclusions. For example: