The US media have reported a number of instances in which companies have hired private detectives to spy on workers taking “sickies”. Surveillance in these circumstances will often be defensible, the US courts having decided that “reasonable suspicion” is sufficient justification. But what is the position in the UK?
In the UK the covert surveillance of employees outside the workplace may engage the employee’s Article 8 rights and give rise to a cause of action by the employee for misuse of private information. If the employee is dismissed in consequence of the covert surveillance, the surveillance may render unfair a dismissal that would otherwise have been fair. Alternatively, if an employee discovers that they have been the subject of covert surveillance, they may resign and claim constructive dismissal based on a breach of the duty of trust and confidence owed by the employer.
While each case will depend on its facts, certain principles will be of general application.
First, any surveillance must have a proper and reasonable justification. This will usually mean that the employee is suspected of some serious breach of his contract or employment duties such as failing to attend work without a proper excuse or endangering public health or safety (e.g. a bus driver visiting the pub before starting his night shift).
Second, the employer must have reasonable grounds for the suspicion. Speculation that the employee is up to no good, or suspicion based on workplace gossip alone, is likely be insufficient justification for a breach of the employee’s Article 8 rights even if the speculation or rumours later turn out to be correct. The proper investigation of any allegation, which should include giving the employee an opportunity to respond to allegations before any disciplinary action is taken, is key to a fair dismissal and to avoiding costly claims.
Third, the employer needs to satisfy itself that surveillance is necessary to achieve its legitimate aims. If other less intrusive means are available to the employer (e.g. document reviews or workplace monitoring), those means should be adopted first. Again, however, employers should consider whether workplace monitoring will infringe an employee’s right to privacy or breach the duty of trust and confidence owed to an employee. Guidance is set out in the Information Commissioner’s Office Code on Employment Practices.
Fourth, the degree of surveillance needs to be proportionate to the intended purpose of the surveillance. It is unlikely, for example, to be proportionate to place the employee’s family members under surveillance.
Fifth, it is advisable for the employer to alert employees in advance to the possibility that surveillance may be used in exceptional cases. The potential use of surveillance may be mentioned in the employer’s disciplinary policy or it may be mentioned specifically to the employee in a case where malingering or other misconduct is suspected or under investigation.
In McGowan v Scottish Water the Employment Appeal Tribunal (EAT) held that the filming of the home of an employee suspected of falsifying time sheets was justified, despite the fact it amounted to a breach of his privacy. Mr McGowan lived in a tied property close to the water plant he was responsible for monitoring. Scottish Water suspected that he was not attending the plant as often as he claimed on his time sheets. Private investigators were commissioned and secretly filmed Mr McGowan from outside his property. This surveillance was considered to be justified and proportionate by the Tribunal (and subsequently by the ETA) despite th efact that Mr McGowan’s father had died during the surveillance meaning his movements during this private bereavement time were secretly monitored.
Similarly, in the recent case of McCann v Clydebank College a part time employee was filmed without his knowledge as his employer suspected he was breaching his contract by working another job while receiving company sick pay. Clydebank College instructed inquiry agents who filmed both Mr McCann’s home and the garage at which it was claimed he was working. The footage from the garage confirmed their suspicions (the footage from his home was not relied upon) and the employee was dismissed. The EAT concluded that surveillance was proportionate in that situation. However, it went on to say that it would not have been legitimate if the employer had gone further than was necessary to prove the point.
However, Tribunals have shown some reluctance to entertain evidence of surveillance in dismissal cases. The Tribunal in Barrett v London Underground upheld an employee’s unfair dismissal claim where he had been caught on camera playing squash while on leave from work due to an ankle injury. He successfully argued that his GP had advised that he exercise to speed the recovery of his injury and was awarded £10,000. This emphasises the importance of investigating allegations made against an employee, including obtaining an employee’s comments on the allegations, even if evidence against them suggests a clear cut case.
This post was originally published on the RPC Privacy Blog and is reproduced with permission and thanks.
Defamation has always been a difficult law to pursue despite many abuses felt by employees on basic issues of job titles to more subtle abuses of race. However UK and US law has great strength.Defamation—also called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. It is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).In common law jurisdictions, slander refers to a malicious, false,[not specific enough to verify] and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images.Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. “Unlike [with] libel, truth is not a defense for invasion of privacy.”[not verified in body.False light laws are “intended primarily to protect the plaintiff’s mental or emotional well-being.” If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.In most civil law jurisdictions, defamation is dealt with as a crime rather than a tort.A person who destroys another’s reputation may be referred to as a famacide, defamer, or slanderer. The Latin phrase famosus libellus means a libelous writing. The biggest favour I can give for anybody seeing defamation or slander is to use foresight and file witness statements, make notes, record and process through a case far ahead of seeing the lawyer. Often victims remain victims of bad employers with abusive staff because the victim does not have the foresight to provide proofs for the honourable Court processes. Simply GET THE PROOFS OF DEFAMATION QUICKLY AND BEFOREHAND and then file a lawsuit with confidence.
Dinesh R Makwana