Employers often suspect that their employees are malingering but are unable to prove it without conducting surprise visits to the employee’s home or instructing a private investigator to spy on the employee. The legality of surveillance has been litigated in the courts in recent years. The key issue is whether the use of covert surveillance breaches an employee’s right to a privacy and family life under Article 8 Human Rights Act 1998.
In City and County of Swansea v Gayle 2013, the employer conducted covert video surveillance on Mr Gayle whom it suspected of playing squash during work time while claiming payment for being at work. Covert surveillance showed that Mr Gayle was at a sports centre on a succession of Thursdays when he had claimed to be at work.
The employment tribunal held that Mr Gayle was in fundamental breach of contract that justified his summary dismissal. However, it upheld a claim for unfair dismissal (although awarding nil compensation for contributory conduct) because it disapproved of the council’s use of covert surveillance. As a public sector employer, it had violated article 8. The tribunal found the investigation unreasonable because it was more thorough than it needed to have been and that a person defrauding his employer had a reasonable expectation of privacy.
Employment Appeal Tribunal (EAT) overturned the finding of unfair dismissal
The EAT disagreed. It held that the taking of photographs or the making of observations of individuals in public places will not constitute a breach of Article 8 because such persons will not have the reasonable expectation of privacy in those places.
In this case, the photography was of Mr Gayle in a public place. Also, the video footage was of him outside the doors of the sports centre, also a public place. Furthermore, it held that an employer is entitled to know where a colleague is and what they are doing in the employer’s time. An employee can have no reasonable expectation that he can keep those matters private and secret from his employer at such a time. To do so would be contrary to the employee’s obligations under his contract.
Jon Heuvel, employment partner at Penningtons, said: “The legal issue here was whether the employer’s actions in treating the Mr Gayle’s misconduct by taking time off from work during the working day and claiming pay for it was a sufficient reason for dismissing him.
“This involved asking not only whether there is a genuine belief but also reasonable grounds for it based upon a reasonable investigation. The EAT held that the tribunal could not say the dismissal was unfair because it disapproved of covert monitoring however reprehensible that may be in moral or social terms. Also it is very unlikely that an investigation will be held unreasonable because it is too thorough.”
He added: “An employer has the right to take steps to counter fraudulent behaviour as a crime invites publicity and an employee cannot legitimately demand privacy. However, employers do need to ensure that covert surveillance is done during the employee’s working hours and outside of their home or in a public arena.”
When it comes to staff surveillance, Josh Cocklin, investigations director at True Diligence Limited, a firm specialising in workplace investigations, said: “Surveillance on an employee has to be both reasonable and proportionate to the circumstances. Perhaps, unsurprisingly, the two biggest concerns by employers in engaging an investigations firm are the question of the legality of the methods and tactics used and the admissibility of any evidence obtained during an enquiry.”
Cocklin advised: “Our investigations are ethical, legally compliant and transparent. We always set out the strategy from the outset and keep employers regularly updated on how our findings can be used in a disciplinary process and litigation. The costs of investigations are rarely as expensive as businesses think. However, the consequences of not combating an issue such as fraud are often far more costly to a business."