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Covert recordings and employees on the go…

The recent story regarding West Yorkshire Fire Service who used a private investigator to place a tracking device on an employee’s car has received a great deal of press attention this week. This story once again raises questions as to whether employers can rely on evidence which they have obtained covertly, when they suspect an employee is perhaps not genuinely ill or is receiving alternative income from another source, contrary to their contract of employment and/or sick pay policy.

Generally speaking, an employer should exercise caution with respect to any evidence obtained as a result of recording an employee’s activity covertly. Use of covert recordings raises right to privacy concerns as well as data protection issues. In the Employment Practices Code, the Information Commissioner has suggested that covertly obtaining evidence may only be legitimate in relatively rare circumstances. It also goes without saying that Tribunals will closely examine the legitimacy of such evidence should the employer rely on this evidence to dismiss an employee.

When considering evidence which is obtained covertly, a Tribunal is likely to consider whether an employee’s right to privacy under Article 8 of the European Convention on Human Rights, has been infringed. Factors which Tribunals have taken into account when considering this issue in previous cases include whether the employee has been the subject of surveillance in what is legitimate “work time” or in their own spare time; and/or whether they have been recorded in a public place where they may have less expectation of privacy than for example, in their own home or car.

If employers do decide to rely on covert recordings then before doing so, they should undertake an impact assessment to demonstrate that the monitoring achieves the desired balance between allowing workers to enjoy privacy in the workplace and ensuring the interests of the business are protected. A Tribunal will consider whether such an assessment has been carried out. This will provide important evidence for an employer to show that they have thought about the reasonableness and legitimacy of their actions.

In cases involving sickness, if an employer wishes to use covert evidence to query the genuineness of an employee’s absence, then a medical opinion should also be sought on the evidence. Not obtaining such an opinion could result in a dismissal being considered unfair by a Tribunal.

Finally, it should be noted that if an employee finds out about the covert surveillance and considers that his Article 8 right to privacy and/or data protection rights have been infringed, then notwithstanding the negative impact this could have on staff morale and PR, the employee could also resign and potentially claim constructive unfair dismissal.

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