Legal dilemma: employee claiming sickness absence is not ill

A member of staff has been off sick for several weeks but I overheard a conversation that suggested she has just been to a concert with a colleague. I’d like to hire an investigator to see if she telling the truth. Is that legal and how would it work?

It is perfectly legal to hire an investigator to make enquiries into this matter. A professional services provider will be able to make discreet enquires to either prove or disprove the information overheard – generally it is considered that there is ‘no smoke without fire’.

At the outset of any enquiry, a full investigation plan should be drafted for discussion and agreement with yourselves. The plan should contain all actions that will be carried out during the investigation, including any potential witnesses that may required for interview and written statements that will be taken.

Statements should contain only facts in relation to the matter under investigation and not hearsay evidence. Any interviews that may need to be completed should be carried out in a confidential environment and in accordance with the Police & Criminal Evidence Act 1984. Any interviewees will be entitled to be accompanied by a supporting individual.

Given the nature of investigations, the plan is a ‘live’ document that may be altered as new evidence comes to light; however, any changes should be contained as a written file note within the investigation file.

Although the overheard conversation related to a past event, which could prove difficult to substantiate, covert surveillance could be considered a requirement of the investigation to monitor the movements of the sick member of staff at present.

We would suggest that any organisation considering the use of surveillance apply what we consider the best practice principals of the Regulation of Investigatory Powers Act 2000 to ensure that any evidence gathered may be collected in a manner that would be considered admissible should the case require a criminal, civil or disciplinary sanction.

Any organisation considering the use of surveillance should use reputable professional provider at the outset due to the legal challenges faced when considering any type of surveillance.

Carol Lee, senior manager at corporate intelligence specialist, BTG Intelligence

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