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Surveillance of employees on sick leave
[ch 7: pages 222-223]Notwithstanding the Human Rights Act, the use by employers of covert surveillance footage is a growing feature of court and tribunal cases involving sick leave and sick pay. A dismissal can be fair despite the use of this kind of evidence, which usually aims to prove that an employee claiming sick pay is not genuinely ill or injured. 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 his home and garage daily over one week and produced a DVD showing him working at the garage. He was dismissed for gross misconduct and brought a tribunal claim.
Following the leading case of McGowan v Scottish Water (EATS/0007/04) (discussed on page 281) the EAT concluded that the secret use of private investigators in this case was “proportionate”, and not a breach of his human right to privacy.
McCann v Clydebank College [2010] UKEATS/0061/09
There is no right to privacy where covert surveillance takes place in a public space (City and County of Swansea v Gayle [2013] UKEAT/0501/12/RN). Covert surveillance is governed by the Data Protection Act 1998 and by Part 3 of the Information Commissioner’s Code of Practice: Monitoring at work. In Gayle, the EAT said the Code is only “guidance” and it does not create legal rights. Since employers are not legally obliged to follow it, a breach of the Code cannot make a dismissal unfair, ruled the EAT.
Doing paid work for a third party during working hours while on sick leave, without the employer’s permission, is likely to be gross misconduct capable of justifying a summary dismissal (McCann v Clydesbank College [2010] UKEATS/0061/09). Even if the dismissal is found to be unfair, any compensation is likely to be cut significantly, on the basis that the employee caused or contributed to their own dismissal (see Chapter 10: Dismissal).