Surveillance

Employers should be able to justify a decision to dismiss arising from sickness absence but some go to extraordinary lengths to achieve this (see page 19).

Employers who go too far could be accused of human rights violations. However, the human right to privacy under Article 8 of the European Convention on Human Rights is not absolute. Intrusions are allowed where the employer can justify its actions as a proportionate means of achieving a legitimate aim identified in the convention.

In City and County of Swansea v Gayle [2013] UKEAT 0336/12/2106, there was no infringement of Article 8 when a council used covert surveillance to video the activities of an employee suspected of playing squash during working hours when he was claiming to be working from home.

There are other protections available. The Data Protection Act 1998 (DPA) requires employers to “process” personal data or information in a fair and lawful way, and the Employment Practices Code issued by the Information Commissioner’s Office (ico.org.uk) provides guidance on how employers can ensure that they follow the DPA. The code is helpful and reps can make good use of it. However, in Gayle, the EAT ruled that as it is not a statutory code, it has the status of guidance only. In practical terms this means that breaching the code will not make a dismissal unfair.

Senior management should satisfy themselves that there are grounds for suspecting criminal activity or equivalent malpractice (and that notifying individuals about the monitoring would prejudice its prevention or detection); covert monitoring should be strictly targeted at obtaining evidence within a set time frame and not continue after the investigation is complete; and it should not be used in areas which workers would genuinely and reasonably expect to be private.

The Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, also regulate the practice of covert monitoring of staff and circumstances when it is lawful.

In the case of Pacey v Caterpillar Logistics Services (UK) LTD, surveillance was shown to be no substitute for medical evidence. Caterpillar was suspicious that its employee’s back condition was not genuine and arranged for a private investigator to carry out covert surveillance while he was on sick leave. Mr Pacey was seen carrying out activities such as walking his dog and carrying light shopping.

After he returned from sick leave he was dismissed for gross misconduct for falsely claiming company sick pay, while being fit to work. But Pacey won his claim for unfair dismissal at the tribunal. One reason for this was that the decision to dismiss made without any medical evidence to support the suggestion that the back injury was not genuine.