The Human Rights Act and surveillance

In McGowan v Scottish Water ([2005] IRLR 167), the EAT confirmed that the human right to respect for private and family life (Article 8) is engaged by an employer’s decision to carry out covert surveillance of staff. However, the tribunal went on to conclude in that case that the use of private investigators to record Mr McGowan coming and going from outside his own home for a week was a proportionate means of addressing the legitimate aim of “preventing crime”. The tribunal accepted evidence from Scottish Water that it had genuine suspicions that Mr McGowan had been falsifying time sheets by manufacturing false “call outs”, and that the employer had explored other ways of investigating the situation before concluding that using investigators was the only way of addressing the issue, especially as Mr McGowan worked virtually alone at an isolated water treatment plant, living in a nearby tied cottage.

Even though Mr McGowan’s claim was unsuccessful, the case is helpful to reps because it demonstrates that for covert surveillance not to be a breach of the HRA, the issue requiring investigation must be grave and serious, the employer must have genuine and reasonable grounds for suspicion, the employer must explore all other viable ways of investigating before opting for surveillance, and the level and manner of carrying out the surveillance must be “proportionate”. Surveillance should not be a default or “knee-jerk” response of employers.

Employers are expected to warn staff, for example in a policy, that covert surveillance may be carried out. (For further information see Social media, monitoring and surveillance at work, LRD 2012)