The usual suspects: what to consider if covertly monitoring your employees

While employees have rights under legislation such as the Data Protection Act and the Human Rights Act, a code of conduct concerning data protection was released earlier this year by the Information Commissioner’s Office.

The code is not legally enforceable, but it offers more specific advice on covert monitoring. For example, investigations should be kept within a fixed timeframe, monitoring should be restricted to the specific investigation and should not be used in private areas. The code also includes advice regarding the hiring of private detectives.

Such situations are rare, but the suicide last year of 47-year-old Abbey IT analyst Richard Chang brought the subject to the fore.

The case involved the two anonymous malicious documents that were sent to Abbey bosses, falsely accusing the company of financial corruption and sexual impropriety in the awarding of IT contracts. Abbey chiefs were concerned that such a disgruntled employee could use inside knowledge to damage the business.

Private investigators from security specialist Kroll were employed. Investigators combed through a list of 600 employees secretly taking fingerprints from glass water bottles, hacking into computers and using a linguistic expert to study the documents.

Unbeknown to him, Chang emerged as one of the main suspects and was summoned to what he thought was a routine meeting. Instead he was interviewed for two-and-a-half hours by Kroll agents.

At an inquest into his death last month at St Pancras Coroner’s Court, the agents said they believed Chang was on the verge of confessing. But after the interview he tidied his desk, wrote a suicide note and jumped to his death from the fifth floor of the bank’s headquarters in London.

Despite criticism from Chang’s widow, Abbey remains largely satisfied with the way the investigation was conducted. “We believe the investigation into these very serious allegations was done diligently and correctly,” said a spokesperson.

“This is the first time that we have been in a position where we have had to bring in third parties to help us with an investigation, and whilst we are satisfied with the overall approach, there are always learning points from any such experience,” the spokesperson said.

Indeed, the coroner returned a verdict of suicide, blaming neither Abbey nor Kroll for Chang’s death. He did, however, promise to send a report to conciliation service Acas to help to provide guidance for employers dealing with similar investigations.

“When an interview has been conducted the employee should not be unescorted. There is a risk of the employee being rendered vulnerable by the interview. This case is obviously tragic and employers are going to be faced with these situations in future,” the coroner said.

Abbey said plans were put in place for Chang to be accompanied after the interview, but for “various reasons” this did not happen. “There were no signs that Richard was in any way distressed. He was not prevented from leaving the interview at any stage, from having a break or getting something to eat or drink,” the spokesperson said.

Acas said it would consider whether it needed to revise is discipline and grievance codes of practice in the wake of comments from the coroner in the Chang case.

Mike Ball, employment partner at law firm Halliwells, said despite the Human Rights Act which came into force in 2000, covert employee surveillance activity appears to have increased.

“The courts have applied a balancing test in cases where human rights are in issue. The right will be upheld to the extent that it does not infringe upon another right. There is also the implied term of mutual trust and confidence. This is included in all contracts of employment. If it is breached, the employee may resign and claim constructive dismissal,” Ball said.

“Intrusive surveillance would be likely to breach [the implied term] but the employee would have to resign in order to enforce any right to compensation.”

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