Covert surveillance on your employees – have you ever been tempted?
How far would you go to catch out an employee?
How often have you been in the situation where you have an employee off sick and you suspect them of swinging the lead? How far would you go to prove that they are being dishonest? Would you be tempted to employ a private detective to snoop on an employee in an attempt to catch them out?
Recently Caerphilly Council did exactly that, and it landed them in trouble. One of their employees had been signed off sick for four weeks and they had heard informally that she said she felt housebound. They were worried that she would try to avoid important sickness meetings with this excuse, and decided to go on the offensive. They sent someone to carry out covert surveillance, hoping to prove that the employee was well enough to leave the house and was fraudulently claiming sick pay.
As suspected, the footage showed the employee leaving home, so clearly she was not housebound. When deciding what to do with this information, the Council concluded that actually a) the medical evidence provided by the employee had never suggested she was housebound and b) the employee had in fact attended a meeting at work while the surveillance was ongoing. They decided, therefore, not to act on the information.
Unfortunately for them, the employee later found out that she had been secretly monitored and this upset her. A complaint was made to the Information Commissioner’s Office (ICO) that the Council had breached their obligations as a data controller by carrying out the covert surveillance. The ICO accepted that this sort of monitoring can sometimes be justified, but only in “exceptional circumstances” where there is suspected criminal activity or equivalent malpractice (for example fraudulently claiming sick pay).
The ICO felt that “exceptional circumstances” did not exist in this case. Whilst the Council suspected that the employee was fraudulently claiming sick pay, they did not have the necessary medical evidence to justify their suspicions, or sufficient evidence that the employee would use her absence to avoid meetings. Significantly, they also hadn’t considered other measures to discuss her sickness or attendance at meetings, and the ICO felt that surveillance after just four weeks’ absence was a very early stage to resort to such measures.
The ICO required the interim chief executive of the Council to give personal undertakings to ensure all personal data would be processed fairly and lawfully in the future.
When is it appropriate to use covert surveillance?
The ICO has helpfully highlighted a number of conditions for surveillance to be justified:
- Complete a written impact assessment to determine whether the adverse impact on the employee is justified by the benefits to the employer and others.
- Ensure that any covert monitoring is authorised by senior management. In doing so, they must be satisfied there are grounds for suspecting criminal activity or equivalent malpractice.
- Ensure that any covert monitoring is strictly targeted at obtaining evidence within a set timeframe and that it does not continue after the investigation is complete.
- Do not use covert audio or video monitoring in areas which workers would genuinely and reasonably expect to be private (eg bathrooms, changing areas etc).
- If a private investigator is used, make sure there is a contract in place which requires him or her only to collect information in a way that satisfies the employer’s obligations under the Data Protection Act 1998.
- Ensure that information obtained through covert monitoring is used only for the prevention or detection of criminal activity or equivalent malpractice. Disregard and, where feasible, delete other information collected in the course of monitoring unless no employer could reasonably be expected to ignore it.
When using private investigators, it is critical that employers give very clear instructions on how to proceed and the kind of evidence they are to look for, otherwise the surveillance could become harassment, for which the employer is likely to become liable under the Human Rights Act 1998 or the Protection from Harassment Act 1997 and any electronically recorded evidence will be valueless. Therefore, private investigators should only be instructed when the employer considers such surveillance is justified.
In addition, they should be carefully and specifically briefed as to the “do’s” and “don’ts” of surveillance. For example, inappropriate recording of conversations or intrusive physical surveillance (such as unnecessarily following the employee) will be unjustified and therefore unlawful if it is not necessary to capture the information required to prove the point.
If the surveillance becomes intrusive, there is also the risk that the (allegedly!) malingering employee may claim a breach of the implied term of trust and confidence in his contract of employment and so claim breach of contract and/or unfair dismissal. Alternatively, the individual could argue that the decision to put him or her under surveillance was discriminatory (consider the example of a pregnant woman having a lot of time off for, say, morning sickness).
It is helpful to know that the use of covert surveillance is open to you if suspect an employee of malingering, and the door has not been completely shut by the ICO; however, as always, you should exercise extreme caution before going down this route to ensure that it is not at best, a waste of time and money and, at worse, a referral to the ICO.