andyf8686
Well-known member
Can you use private investigators to spy on your employees?
With phone hacking in the news, we look at cases involving employers carrying out covert investigations on their own employees. In limited circumstances, employers can use private investigators to ensure that their employees are not committing serious, unlawful acts against them – but there are numerous pitfalls.
The cases
Barrett (B) v London Underground (LU) – B was dismissed after being caught playing squash on camera (following surveillance) whilst being on sick leave due to an ankle injury. LU failed to obtain B’s comments on the evidence before dismissing him. He was judged to be unfairly dismissed as his GP had advised him to exercise to speed up his recovery.
Pacey (P) v Caterpillar Logistics Services UK (CLS) – P was dismissed after having been filmed doing various activities such as carrying shopping and de-iceing his car whist on sick leave with a back injury. He was shown the footage and stated that his GP has advised him to take light exercise and ‘do as much as possible’. CLS wrote to P’s GP, providing a written summary of the footage, to check whether his advice was consistent with P’s explanation. The GP stated that it was consistent but CLS still dismissed P and lost when P claimed unfair dismissal. The tribunal particularly criticised CLS for failing to give the GP the actual video footage.
What this means for you
The Human Rights Act gives all individuals the right to respect for their private and family life. However, so long as it is both ‘proportionate and legitimate’ to do so, an employer is entitled to make use of covert surveillance. The definition of ‘proportionate and legitimate’ will always change with each case, but generally the following should be considered:
•The employee should be suspected of a serious contractual breach, such as fraudulently claiming payments (e.g. remuneration, expenses, sick pay) or endangering public health or safety (e.g. drinking alcohol whilst on duty)
•Your suspicions must be justified and be based on reasonable grounds – simple speculation or office gossip will not suffice
•Surveillance is a last resort – consider alternative methods such as workplace monitoring, obtaining statements from witnesses or looking at relevant documentation
•If surveillance is required, it should be strictly limited to what is needed to achieve your aims. Evidence from surveillance in a public place is preferable.
•If the surveillance appears to confirm your suspicions then you must follow a fair disciplinary procedure before making any decisions and give your employee an opportunity to comment on the evidence. If the issue relates to health, then medical evidence should be obtained from an expert or the employee’s GP, having providing them with all the evidence that you collated.
With phone hacking in the news, we look at cases involving employers carrying out covert investigations on their own employees. In limited circumstances, employers can use private investigators to ensure that their employees are not committing serious, unlawful acts against them – but there are numerous pitfalls.
The cases
Barrett (B) v London Underground (LU) – B was dismissed after being caught playing squash on camera (following surveillance) whilst being on sick leave due to an ankle injury. LU failed to obtain B’s comments on the evidence before dismissing him. He was judged to be unfairly dismissed as his GP had advised him to exercise to speed up his recovery.
Pacey (P) v Caterpillar Logistics Services UK (CLS) – P was dismissed after having been filmed doing various activities such as carrying shopping and de-iceing his car whist on sick leave with a back injury. He was shown the footage and stated that his GP has advised him to take light exercise and ‘do as much as possible’. CLS wrote to P’s GP, providing a written summary of the footage, to check whether his advice was consistent with P’s explanation. The GP stated that it was consistent but CLS still dismissed P and lost when P claimed unfair dismissal. The tribunal particularly criticised CLS for failing to give the GP the actual video footage.
What this means for you
The Human Rights Act gives all individuals the right to respect for their private and family life. However, so long as it is both ‘proportionate and legitimate’ to do so, an employer is entitled to make use of covert surveillance. The definition of ‘proportionate and legitimate’ will always change with each case, but generally the following should be considered:
•The employee should be suspected of a serious contractual breach, such as fraudulently claiming payments (e.g. remuneration, expenses, sick pay) or endangering public health or safety (e.g. drinking alcohol whilst on duty)
•Your suspicions must be justified and be based on reasonable grounds – simple speculation or office gossip will not suffice
•Surveillance is a last resort – consider alternative methods such as workplace monitoring, obtaining statements from witnesses or looking at relevant documentation
•If surveillance is required, it should be strictly limited to what is needed to achieve your aims. Evidence from surveillance in a public place is preferable.
•If the surveillance appears to confirm your suspicions then you must follow a fair disciplinary procedure before making any decisions and give your employee an opportunity to comment on the evidence. If the issue relates to health, then medical evidence should be obtained from an expert or the employee’s GP, having providing them with all the evidence that you collated.
