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Surveillance evidence in disciplinaries
[ch 7: pages 66-68]The Acas Guide Discipline and grievances at work emphasises the importance of employers keeping an open mind and always looking for evidence that supports the employee’s case as well as evidence against. In the context of surveillance evidence, employers should look at the whole of any relevant electronic or surveillance evidence, not just the footage suggestive of guilt. For example:
A counter worker at bookmakers William Hill was dismissed for dishonesty. She was accused of not returning to customers the stake they had placed on bets that were “voided” because the race had already started by the time the bet was placed. The dismissal was unfair because managers watched only the sections of CCTV that made it look as if she was guilty — not the whole footage. Had they done so, they would have seen evidence to support her innocence.
Miller v William Hill Organisation Limited [2013] UKEAT 0336/12/2106
Surveillance evidence, especially when used to investigate allegations linked to sickness or injury, can lead employers to reach stereotypical, wrong and potentially discriminatory conclusions. The following case shows how employers must never jump to conclusions about an employee’s medical condition based on video evidence alone. Expert medical evidence is always needed:
Mr Pacey, a forklift driver at Caterpillar Logistics, was involved in a driving incident at work. He was signed off by Caterpillar’s occupational health doctor as unfit for work due to a back injury, and by his own GP for five weeks. Caterpillar and its insurers were suspicious of the accident, so a private investigator was hired to follow Pacey and video him over three days. A DVD showed him clearing ice from his car, driving and carrying shopping, walking his dog, throwing a ball, bending and taking delivery of a bulky parcel. After a disciplinary hearing, Caterpillar dismissed him for gross misconduct — fraudulently claiming sick pay.
Pacey had a clean disciplinary record and good attendance. At his claim for unfair dismissal, the tribunal described as “completely incomprehensible” that an employer would dismiss someone for fraudulently claiming to be ill without first getting medical evidence. The investigation, said the tribunal, was totally inadequate: no reasonable employer would have concluded that Pacey was guilty of misconduct. He was awarded nearly £50,000 of compensation.
Pacey v Caterpillar Logistics Services (UK) Limited Case No. 3501719/10
Reps should normally object in principle to the use of any evidence obtained covertly. Even so it is important to control a member’s expectations. Where gross misconduct has taken place, the fact that incriminating evidence was obtained covertly is unlikely to make a dismissal unfair.
In a workplace with a recognised union, there may be a collective agreement in place limiting the use of covert monitoring.
The ICO Employment Practices Code (see above) is a useful tool, and contains good arguments to use to hold the employer to account. However it is not a legally binding Code and on its own, breaching the Code will not make a dismissal unfair. This was confirmed in the Gayle ruling summarised above.
The member should be given plenty of advance notice of any surveillance evidence the employer wants to rely on and the chance to respond properly and to call witnesses to contradict the evidence or to put it in context, telling their side of the story.
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.
Drawing on the ICO Employment Practices Code, the employer can be challenged to explain, in writing, how and why the decision was taken to collect evidence using covert surveillance, what level of management took that decision, how the evidence was collected and what alternatives were explored first.
Sometimes evidence obtained through covert monitoring (for example, computer logs) is confusing and difficult to understand. The employer should explain what any entries mean and also, for example, how the record compares with that for other comparable workers, or other times of year.
It is important to make sure the employer looks at the whole of any relevant footage (for example CCTV footage) — not just the part that suggests guilt.
If the results of any covert surveillance produce evidence that suggests misconduct by other workers who were not the target of the surveillance, this should not be used to trigger disciplinary action against them. The only exception is where it clearly points to criminal activity or equivalent malpractice.
Unjustified covert monitoring is likely to fundamentally breach the implied contractual duty of mutual trust and confidence.
Reps should monitor the use of covert surveillance evidence at work and look for patterns that suggest that particular categories of worker are being targeted unfairly.