When is it OK to use covert surveillance at work?

Covert surveillance in an employment context is an uncomfortable concept. The employment relationship is underpinned, on both sides, by a duty of trust and confidence. So, spying on your employees should be the last resort, and used sparingly.

5 risks of covert surveillance

There are several legal risks if you covertly monitor an employee without a good reason and/or the surveillance is unnecessarily intrusive:

1. Any dismissal based on the evidence gathered may be unfair.
2. The employee may resign and claim constructive unfair dismissal because you’ve breached the implied duty of trust and confidence.
3. You could face a disability discrimination claim if you unreasonably carry out surveillance on a suspected malingerer.
4. The Information Commissioner’s Office (ICO) may prosecute you for breaching your data protection obligations. 
5. You may breach the employee’s right to privacy under the Human Rights Act 1998.

City and County of Swansea v Gayle

It can, however, sometimes be justified. In City and County of Swansea v Gayle, Mr Gayle was twice spotted playing squash at a sports centre when he should have been at work. The council hired a private investigator who covertly recorded him visiting the sports centre five more times during working hours.

The Employment Appeal Tribunal held that Mr Gayle’s dismissal was fair, and the covert surveillance was proportionate and reasonable. Mr Gayle could not reasonably have expected privacy in this situation because:

• He was filmed in a public space.
• He was filmed during working hours, and an employer is entitled to know where an employee is when they’re meant to be working.
• He was defrauding the council by claiming pay for time when he hadn’t been working.

Kerita v BMW (UK) Manufacturing Ltd

Most employers, when faced with an employee they feel is lying about being off work sick, may have felt tempted to expose that behaviour. However, covert surveillance should only be used as a last resort. In the case of sick leave, it’s much better to seek medical input from occupational health or the employee’s doctor rather than covertly monitoring them. A person’s disabilities aren’t always visible, and recorded evidence doesn’t necessarily tell the full story. This was illustrated in the recent case of Kerita v BMW (UK) Manufacturing Ltd. A BMW employee had a history of back pain, which was exacerbated by his work building cars. An occupational health assessment concluded that he was probably disabled. After he went off sick, BMW hired a private investigator to carry out surveillance. The investigator filmed him from behind walking about three miles over 90 minutes and bending down at one point. BMW accused him of dishonesty and dismissed him for gross misconduct.

Mr Kerita successfully claimed unfair dismissal, direct disability discrimination, failure to make reasonable adjustments and discrimination arising from a disability. The employment tribunal noted that:

• Mr Kerita had never told BMW that he was unable to walk – only that walking for some time caused pain, sickness and dizziness.
• The surveillance footage didn’t show his face, so it didn’t prove he wasn’t in pain. 
• BMW managers were too quick to conclude that an employee with a health condition was being dishonest about their symptoms.

Further reading

• Discrimination – Your rights – Gov.uk
• Your rights under the Equality Act 2010 – EHRC
• The Equality Act 2010 – Gov.uk

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