Surveillance evidence

What if the employer has gathered information using covert surveillance methods, for example, private investigators? This is increasingly common, especially where the employer is alleging abuse of the sick pay procedure.

In McGowan v Scottish Water [2006] IRLR 167, the EAT confirmed that the human right to respect for private and family life (Article 8 of the European Convention on Human Rights) is triggered by an employer’s decision to carry out covert surveillance of staff. However, in practice, employers are often able to rely on surveillance evidence despite human rights law. The law says that an employer is allowed to infringe the human right to a private life as long as its actions can be justified as a “proportionate” means of achieving one of the “legitimate aims” listed in the Convention. The justification most frequently relied on by employers who carry out covert employee surveillance is the aim of “crime prevention” (on the basis that sick pay abuse or clocking infringements affecting pay amount to theft or fraud of the employer).

Mr McGowan’s case against Scottish Water was an extreme example. The surveillance involved two private investigators who stood on the public highway watching Mr McGowan coming and going from his home over a time-limited period of one week. This was judged (by a majority of the EAT judges) to be a “proportionate means” of addressing the “legitimate aim” of “preventing crime”. The tribunal accepted that Scottish Water had genuine concerns that Mr McGowan had been falsifying time sheets by staging false call-outs, and that the employer had explored other ways of investigating the situation before concluding that using private investigators was the only way forward. It is worth noting that Mr McGowan worked virtually alone at an isolated water treatment plant and lived in a nearby tied cottage. The result of this unusual working situation was that there were no practical alternatives to covert surveillance available to the employer.

Although Mr McGowan’s case was unsuccessful, the case is important for reps because it emphasises some significant limitations on employers’ right to conduct surveillance in this context:

• The case confirms that covert surveillance can only be justified under the Human Rights Act 1998 where the issue under investigation is grave and serious.

• The employer must explore all other viable ways of investigating before opting for surveillance. In many cases, unlike in Mr McGowan’s case, there will be other options available to the employer.

• The level of surveillance and the manner of carrying it out should be proportionate - it should not be a knee-jerk reaction.

• Employers should warn in advance (for example, in a policy) that covert surveillance might be used.

• It is probably easier for an employer to justify covert surveillance at work than at home, especially if the employer has warned that it might happen.

• Covert surveillance should be strictly time limited. In the McGowan case, it lasted one week.

• The Employment Practices (Data Protection — Monitoring at Work) Code provides guidance on monitoring at work. The Code is guidance not law. Part 3 of the Code states that covert monitoring should only be used if criminal activity or equivalent malpractice is suspected. The Code can be accessed from the Information Commissioner’s website at: www.ico.gov.uk

• Covert surveillance that cannot be justified will be a breach of the Human Rights Act 1998. Any resultant dismissal will almost certainly be unfair.

Reps should normally object in principle to the use of any evidence obtained covertly. However, at the same time, it is important to be realistic in explaining to a member that a tribunal will not normally refuse to consider evidence just because it has been obtained covertly, and that a dismissal will not be unfair just because covert evidence has been used. The employer may be able to justify that use.

Reps should try to make sure the member has adequate advance notice of the surveillance evidence the employer plans to use in the disciplinary. The employer should be asked to explain in writing how it came to be used and what alternative options were looked at before deciding to use covert surveillance. If the evidence takes the form, for example, of computer logs perhaps showing alleged computer misuse, the employer should provide a clear explanation of how the log was created, what the various entries mean and how it fits into the overall context.

The member should be given a copy of any video or audio recording, and facilities in which to view it in private with their rep, more than once if necessary, and to make comments on it in the investigation in good time, just like any other evidence. Reps should try to negotiate an agreement that an advance copy of any surveillance evidence (and any other digitally generated evidence, for example, YouTube videos, screen prints of Facebook entries, copies of tweets and so on) will be provided at least ten working days before the hearing.

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