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Covert monitoring at work
[ch 7: pages 61-66]The key human right invoked in relation to workplace surveillance and monitoring is found in Article 8 of the Convention — the right to respect for “private and family life, home and correspondence”. Other convention rights can also be significant including:
• Article 10 — the right to freedom of expression;
• Article 11 — the right to freedom of association (in cases of trade union victimisation); and
• Article 14 — the right to freedom from discrimination.
In 2007, a secretary at a college in Wales won a legal battle against her employers and the UK government after a senior member of staff secretly monitored her personal communications for up to 18 months. She sued her employer for breaching the European Convention on Human Rights (ECHR). The European Court of Human Rights ruled that her employers violated her right to privacy when they logged details of her personal phone calls, analysed websites she visited and tracked her email correspondence. Represented by human rights organisation Liberty, the secretary was awarded £2,100 in damages for stress and anxiety suffered in the workplace.
The monitoring in this case preceded the implementation of the Human Rights Act 1998, which introduced a general right to privacy in English law. Employers must now ensure that employees are told that their communications could be monitored, and there must be a good reason for monitoring in every case. Surveillance must be justified and proportionate.
Copland v The UK [2007] ECHR 32
http://hudoc.echr.coe.int/eng?i=001-79996
A police force committed a serious infringement of privacy rights (Articles 8 and 14) when it intercepted the private telephone calls of its employee, searching for information about a sex discrimination claim in the employment tribunal. The claimant was awarded £10,000 of damages, even though the court rejected her argument that the incident caused a stress-related illness.
Halford v The UK [1997] ECHR 32
The European Court of Human Rights (ECHR) has defined private life as “the network of personal, social and economic relations that make up the private life of every human being” (Slivenko v Latvia [2004] 39 ECHR 24). It includes the right to establish and develop relationships with other human beings, and to have relationships of a professional or business nature (Niemietz v Germany [1992] ECHR 80).
The TUC states: “Employees have a right to a personal life, and provided they do not breach reasonable conduct guidelines, employers should respect this”.
As public bodies, employment tribunals must take into account the human rights in the Convention when making all decisions. Public sector employees can also bring a claim directly against their employer to enforce their convention rights.
The human right to privacy under the Convention is not without limits. Intrusions on privacy are allowed where they are:
• proportionate;
• lawful; and
• necessary in a democratic society for national security, public safety, economic well-being of the country, preventing disorder or crime, protecting health or morals, or protecting the rights and freedoms of others.
Arguments about the human right to privacy surface most frequently in cases involving covert surveillance, often in the context of investigations into allegations of clocking infringements, time sheet fraud and sick pay claims. The most common basis relied on by employers to justify covert surveillance is “preventing crime”.
The leading UK case is McGowan v Scottish Water:
Mr McGowan worked at a remote water treatment plant and lived very nearby in tied accommodation. Scottish Water suspected he was falsifying his time sheets, and claiming for non-existent call outs. They engaged private investigators to watch his home from the public road opposite his house, videoing his comings and goings and comparing them with his timesheets. The investigation confirmed their suspicions.
After his summary dismissal for gross misconduct, McGowan brought a tribunal claim alleging that the surveillance had breached his human right to privacy. His claim was rejected.
The EAT said that employees should normally be warned of the possibility of covert surveillance, for example in a policy. Failing to warn creates a risk of a breach of human rights. However the decision not to warn could be justified in this case because had he been warned, McGowan could easily have changed his behaviour to avoid being caught on camera by the investigators during the surveillance, which lasted one week.
The EAT said that covert surveillance of someone’s home (even standing on a public highway) raises a strong presumption of breach of the right to privacy. However Scottish Water could justify its actions as lawful and necessary in this case to prevent fraud (time sheet fraud leading to pay for fictitious work), to protect its assets and for reasons of public safety (the risk of a water incident at the plant). It is a question, said the EAT, of balancing the interests of the individual and those of society to decide whether an employer’s actions are proportionate.
In this case, before engaging investigators, Scottish Water considered other options, such as installing CCTV at the workplace. However this would not have addressed the problem, and there were particular challenges because the plant was isolated and McGowan worked alone. There was no other way of collecting the information needed to establish the truth. The EAT concluded that Scottish Water’s response was proportionate. However, importantly this outcome was not a foregone conclusion. It was not a unanimous decision.
McGowan v Scottish Water [2005] IRLR 167
A particular area of concern for union reps has been the growth in the practice of engaging private investigators to monitor workers claiming sick pay. Here is an example:
Mr McCann was a part-time college lecturer in motor engineering. He also worked part-time at a garage he owned, a fact well-known to his colleagues. He was signed off sick for stress and hypertension and was paid sick pay for his contracted 26 hours a week. The College suspected he was working at his garage and brought in private investigators who watched both his home and the garage daily over one week, producing a DVD which showed him at work in the garage. McCann was dismissed for gross misconduct. He challenged his dismissal, arguing that the surveillance infringed his right to privacy and that the dismissal was unfair. The EAT concluded that the covert use by the college of private investigators was proportionate and did not make the dismissal unfair.
McCann v Clydesbank College UKEAT0069/09
Here are some of the key points that can be drawn from the tribunal cases involving covert surveillance and the human right to privacy:
• employees should be warned about the possibility of covert surveillance, for example in a clear policy, which must be brought to their attention. There should be adequate training;
• covert surveillance can only be justified where the issues under investigation are grave and serious, such as theft or fraud. Covert surveillance for less serious offences is likely to breach the HRA 98;
• covert surveillance is only likely to be justified when telling employees they are under surveillance is likely to undermine the reason for monitoring, by providing an opportunity for those under suspicion to change their behaviour;
• covert surveillance should be reactive. In other words, it should be set up only to investigate a particular problem that has been identified. It should be limited to a short time period. It should not be continuous;
• other less intrusive options are often available and should be considered and eliminated before resorting to covert surveillance;
• the employer should carefully assess the impact of their chosen method of covert monitoring, including its impact on others, and conduct it in the least obtrusive way possible;
• it is probably easier to justify covert surveillance at the workplace than of a worker’s home, or of someone engaged in activities outside working time; and
• covert surveillance should only ever be used for the purpose for which it was set up, and for which justification has been given in any policy. It must not be used for other purposes, such as monitoring performance or attendance.
Workers probably do not have a human right to privacy in public spaces where they can have no genuine expectation of privacy, such as a public street.
An employee who is found to have committed fraud or acted dishonestly is unlikely to be allowed to rely on privacy rights where the employer’s investigation was set up with the purpose of uncovering suspected dishonest behaviour:
Mr Gayle, a council worker, regularly logged into work pretending to be working at home when he was playing squash at a local leisure centre. The council employed private investigators once a week over six weeks to film him going into the leisure centre. The EAT said Gayle had no expectation of privacy in a public space so Article 8 was not engaged. It was relevant that the incidents took place during work time. In addition, the EAT said that Gayle forfeited any reasonable expectation of privacy by committing fraud — claiming wages from the public purse when he was not at work.
City and County of Swansea v Gayle [2013] UKEAT 0336/12/2106
Part 3 of the ICO Employment Practices Code also deals with covert surveillance and monitoring at work. The Code advises that:
• covert monitoring “can rarely be justified” and should not be carried out unless authorised at the highest level;
• there should be grounds for suspecting criminal activity or equivalent malpractice which would be difficult to prevent or detect if staff were told about the monitoring;
• covert monitoring must never be used to monitor, for example, work performance or attendance;
• covert monitoring must never be used in places such as toilets or private offices, or anywhere workers would have a genuine and reasonable expectation of privacy “unless serious crime is suspected and there will be police involvement”; and
• covert monitoring must only be used as part of a specific investigation and must stop once the investigation is complete.