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Surveillance of employees on sick leave
Notwithstanding the Human Rights Act, tribunals are increasingly willing in principle to view secret video footage collected by an employer of a person’s activities. This kind of evidence usually aims to prove that an employee claiming sick pay is not as impaired as they have represented. It is up to the tribunal to decide how much weight to give the footage (Pendragon Motor Co v Ridge EAT/962/00). For 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 Mr McCann’s home and garage daily over one week and produced a DVD showing him at work in the garage. He was dismissed for gross misconduct and brought a claim in the tribunal.
Following the leading case of McGowan v Scottish Water (EATS/0007/04) (discussed further in Chapter 10: Dismissal), the EAT concluded that the secret use of private investigators in this case was “proportionate”, and not a breach of Mr McCann’s right to privacy.
McCann v Clydebank College [2010] UKEATS/0061/09
Covert surveillance is governed by the Data Protection Act 1998 and by Part 3 of the Information Commissioner’s Code of Practice on Monitoring at Work, free to download from the website of the Information Commissioner.
An employer is likely to be able to justify dismissing an employee who carries out paid work for a third party during working hours while on paid sick leave, without the employer’s permission (McCann v Clydesbank College above). However, a dismissal on this basis must satisfy all the tests of a normal fair dismissal for misconduct (see Chapter 10: Dismissal).