Dean Wilson LLP: Surveillance of employees
Ian Wilson of local solicitors Dean Wilson LLP answers questions on employment law. This week: Surveillance of employees
Q. I notice that more and more employers are using secret filming of employees to see whether they are sick when they claim to be or in fact doing something else which is totally inconsistent with being sick. Is this sort of conduct by an employer acceptable and is the evidence obtained by it admissible?
A. What the Tribunals have decided recently is that if the employee’s conduct is evidence of fraud or serious wrongdoing, then covert surveillance is acceptable and admissible. In a recent case involving Swansea City Council and an employee who claimed that he was actually at work was filmed playing squash on five occasions. He was dismissed for fraudulent misconduct.
Q. Would such behaviour not be a breach of his human rights or a breach of the Data Protection Act?
A. The Employment Appeal Tribunal decided in this case that there was no obligation on the employer to follow the non-statutory Employment Practices Data Protection Code and that in any event it had no relevance to the fairness of the dismissal. The Tribunal also held that this was not a breach of his human rights i.e. a breach of his right to reasonable expectation of privacy because on the facts of this case he was involved in criminal activity, i.e. defrauding his employer. One important matter that the Court considered was that the surveillance was in a public place, namely a public squash court. The position would be different however if the surveillance had been in the employee’s home.
By implication surveillance of that nature would not be admissible in evidence and therefore could not be used to justify a dismissal.
Q. Can I install CCTV cameras in the workplace without employees’ knowledge?
A. Workers should normally be made aware that they are being monitored by CCTV and before installing cameras you need to consider whether it is justified, i.e. what are your reasons for wanting to monitor staff in this way. If there is a less intrusive way of achieving your aim than using CCTV you should follow that option first. If you are concerned with preventing theft it is likely to be appropriate to use CCTV but you should tell staff of your plans and be careful about who you allow to view any of the images taken by the CCTV camera.
