Partner Article

Caught on camera: just how far can employers go to monitor staff?

It’s HR focus week on Bdaily. Here, Paul Grindley, employment lawyer at hlw Keeble Hawson, discusses the rise in CCTV monitoring in the workplace.

Developments in digital technology mean that it has never been easier to snoop on employees in public and in the work place.

It is estimated that there are around 1.74 million CCTV cameras in the UK and most companies monitor their staff’s use of the internet and social media.

But just how far can HR managers and employers go to keep tabs on their staff if they suspect them of fraudulent activity?

Paul Grindley, employment specialist and partner at hlw Keeble Hawson, examines the controversial use of covert surveillance of employees and offers employers some guidance to ensure that they don’t fall foul of the law.

“Employers can monitor employees through a variety of means and for a number of reasons; however it must be done within the law.

“Examples of when an employer may want to deploy covert methods to check on a member of staff include concerns that someone on sick leave is not genuinely ill – and may even be running another business – and a suspicion that an employee is defrauding the company, or involved in an illegal activity.

“High profile cases have validated an employer’s right to use surveillance to monitor its people outside of work. An appeal tribunal win for Swansea City and County Council, who secretly filmed a former employee, gave the green light to employers who might have previously been fearful of covertly monitoring employees for fear of breaching European Law.

The case involved a member of staff playing squash when he should have been working. A private investigator hired by the council filmed him leaving his local sports centre on five separate occasions when he should have been working.

“The employee was sacked for gross misconduct and took his case to an employment tribunal, which originally found in his favour. The first tribunal ruled that the use of covert surveillance infringed his rights to a private life under Article 8 of the European Convention on Human Rights.

However, that decision was overthrown by The Employment Appeal Tribunal (EAT) which ruled that the employee lost his right to privacy because he was publically defrauding his employer by playing squash in work time.

“A few years’ ago Scottish Water was exonerated for videoing an employee coming and going from his home to prove that he had been falsifying his timesheets. Again, the employee forfeited his right to privacy because he was effectively involved in criminal activity.

“Another area where surveillance may be used legitimately is when an employer believes that a member of staff who is on sick leave, and being paid, is not actually ill at all and is defrauding the company.

“Employers should approach covert surveillance with caution and only use it if they can’t find evidence of wrongdoing through more transparent ways of investigation.

“Targeted and secret monitoring of an employee can only be justified if an employer has sufficient grounds to suspect criminal activity, serious malpractice or breach of company policies. The surveillance needs to be proportionate to the alleged fraudulent activity the employee is engaged in.

“The whole area of what - and who - can monitor is complex and the wrong decision could leave employers exposed in an employment tribunal. Use covert surveillance as the last resort and make sure that you take the right HR and legal advice.”

This was posted in Bdaily's Members' News section by hlw Keeble Hawson LLP .