One of my employees is on sickness absence and I suspect that he is not in fact unfit to come to work. Can we employ a private investigator and use the evidence at a disciplinary hearing? How do I handle it?


Sharon McArdle writes:


Workers have a legitimate expectation that they can keep their personal lives private. The use of a private investigator should only be used in exceptional circumstances. Before using a private investigator, employers should consider whether any other less intrusive methods of investigation suffice, in this case for example, using occupational health services.


Employers should also bear in mind the following:

• The contractual term of mutual trust and confidence between employer and employee that is implied in to every contract of employment.
• Discrimination law
• Privacy
• Data Protection

Employers must maintain the relationship of trust and confidence that is implied into every contract of employment. If an employee considers that the method or level of surveillance used by an employer is not justified, they may feel that the employer has breached its duty of trust and confidence towards them and thereafter resign and claim constructive dismissal.

Furthermore, employees who feel that they have been unfairly targeted by their employer’s monitoring activities may also claim that they have been unlawfully discriminated against as a result of their sex, race, age, disability, religion or sexual orientation.

Individuals have the right to respect for privacy, family life, home and correspondence under Article 8 of the European Convention on Human Rights, incorporated in to UK legislation by the Human Rights Act 1998. The Act strictly only applies to public bodies and means that it is generally unlawful for a public authority to act in a way which is incompatible with a Convention right.

However private employers should still have regard to employee’s right to privacy. The definition of public authority includes Courts and Tribunals and in deciding whether an employee has been unfairly dismissed a Tribunal must have regard to the parties’ rights under the Act. Additionally Courts and Tribunals are required to interpret all legislation in a way that is consistent with the rights incorporated by the Act.

Interference with privacy can be justified in certain circumstances where it is in accordance with the law, is justified and is necessary, for example to prevent a crime. Therefore employers should consider whether the surveillance which they would like carried out would breach the employee’s privacy and if so is it being carried out in accordance with the law and is justified.


In carrying out surveillance in accordance with the law, employers must have regard to Data Protection issues, and in particular, to Part III of the Information Commissioner’s Code of Practice. This provides that:

1. Any monitoring arrangement proposed by an employer must be a proportionate response to the problem that it seeks to address.

2. The employer should carry out an impact assessment which:

• Clearly identifies the purpose behind the monitoring and the benefits which it is likely to deliver;
• Identifies the likely adverse effect on others;
• Considers alternatives to monitoring;
• Takes into account the obligations that arise from monitoring; and
• Assesses whether the monitoring is justified.

For covert monitoring, additional obligations are place on the employer:

1. Covert monitoring must be authorised by senior management.
2. There must be grounds for suspecting criminal activity or equivalent malpractice where notifying individuals about the monitoring would prejudice its prevention or detection.
3. Employers should disregard or delete information collect in the course of covert monitoring which does not relate to the suspected criminal activity or equivalent malpractice, unless it reveals information which no employer could reasonably be expected to ignore.
4. Covert monitoring must be targeted strictly at obtaining evidence within a set time frame and must not continue after the investigation is complete.
5. It should not be used in areas which workers would genuinely and reasonably expect to be private.

When instructing a private investigator it is important to ensure that the agency chosen is reputable and that the written engagement letter clearly obliges the investigator and any subcontract to act within the confines of the law, including the Data Protection Act 1998.

One occasion where covert surveillance was found to be justified was in the case of McGowan v Scottish Water. Scottish Water suspected that McGowan had been falsifying time sheets in relation to the number of times that he had been called out to attend the water treatment plant where he worked. After considering other methods of investigation, Scottish Water hired private investigators to video Mr McGowan which confirmed Scottish Water’s suspicions and led to him being dismissed. The Scottish Employment Appeal Tribunal held that the infringement into McGowan’s private life was justified as less intrusive measures Scottish Water had considered would not have been effective and the surveillance had uncovered criminal activity.


Conclusion


If the employer considers that the surveillance which they propose to have carried out has a minimal impact on privacy, is in accordance with the law and is justified, they may consider using evidence gathered in disciplinary proceedings. However the employer should also consider whether the method of surveillance could provide grounds for a claim of constructive dismissal or discrimination. It is also important that the employee knows the evidence against them in any disciplinary proceedings and should therefore be provided with the evidence and the chance to respond to it before any decision is made.