David Kearns has many stories to tell about exposing people on fraudulent sick leave. There is the one about an employee at a large national carrier company who was off sick, claiming he’d injured his back by lifting parcels. After checking him over, the company doctor told HR he thought the worker was fraudulently claiming sick leave, and a surveillance operation was mounted against him.
On the day that Kearns and his team began their covert surveillance, they filmed the supposedly infirm man moving house, lifting boxes and loading up vehicles.
“On the basis of the evidence we provided, he was dismissed,” says Kearns.
A former police intelligence detective, Kearns is the founder and managing director of Expert Investigations (EI), a commercial and corporate investigation agency. Working with him are 14 former police detectives, including three former special branch officers, and 16 former special forces officers with military expertise.
“We guarantee to reduce theft, fraud and false sickness,” says Kearns. “We all know how to deal with evidence, preserve it and use it. When gathering evidence, you need to know how to do so legally and make sure it is admissible in court.”
A specialist in surveillance, Kearns can provide a mobile surveillance team to monitor the movements of one or more employees at their homes, at an organisation’s premises, or when they are out and about.
“We have a fleet of surveillance vans, as well as covert, body-worn cameras, which allow primary evidence to be gathered to prove all issues beyond reasonable doubt,” says Kearns.
He says that companies turn to EI when they know they have a problem – and often they know the people concerned – but need to collect concrete evidence of wrongdoing to take action.
“We get called in from an HR perspective when they have done everything they can with regards to processes and legislation,” he says. “Often they just want us to prove, or disprove, what they have found.”
Kearns will talk with HR personnel and find out what information they already have, where the gaps are, and what the options are. It might involve observation on the premises, such as a covert camera trained on a particular hot-spot where a lot of theft has occurred. It might be that books need to be audited, paperwork sifted, telephones and computers data-mined and forensic evidence gathered to show that data has been changed.
The cost varies according to the nature of the enquiry, but the more manpower and high-tech equipment used by EI, the higher the bill. However, as Kearns is quick to point out, theft, fraud and false absenteeism can have massive cost implications for companies, particularly if any or all of them have been going on for a while.
False absenteeism is a problem that is increasingly concerning employers and HR departments, and it is generating lots of work for EI. Some companies, such as Royal Mail, are so desperate to reduce levels of absenteeism that they dangle carrots for staff whose attendance stays above a particular level – such as the possibility of a free car.
Other companies prefer the stick approach. One company that Kearns works for has mounted 12 surveillance operations on staff on long-term sick leave who the HR department suspected were faking it. The company informed employees that this would be the standard procedure for seemingly dubious claims. As a result, says Kearns, its sickness rates have fallen from 11 per cent to 3 per cent.
However, HR professionals need to think carefully before mounting a surveillance operation of any sort, let alone embarking on a company-wide scheme.
Owen Warnock, employment law partner at legal firm Eversheds, says companies could make themselves liable to claims of infringement of employees’ human rights.
“Blanket surveillance runs the highest risk of breaching the Human Rights Act,” he says. “You can’t just go around spying on people. Since the Human Rights Act came into force, there has been nervousness about whether or not it is still legal to do this.”
Not that Warnock believes covert surveillance is completely off-limits – more that it should be used sparingly, as a last resort, and only where there are very strong grounds for suspicion.
“We did have one case where a man was on long-term sick leave with a bad back. We heard that he was fixing neighbours’ cars and he was filmed going under bonnets and humping equipment around.”
The courts often frown upon companies submitting evidence from covert surveillance operations. However, Warnock says that when the evidence vindicates the employer, the courts might be prepared to overlook the methods used.
“It’s a bit of unchartered territory at the moment,” he says. “But if the evidence is damning, the courts and tribunals are reluctant to let a person get away with an injustice just because they don’t like the way evidence was gathered.”
This dilemma was recently highlighted in a breach of human rights case brought against Scottish Water by a former employee. Scottish Water had used private investigators to monitor an employee it believed was falsifying time sheets and fraudulently receiving additional payments as a result. The evidence gathered proved its suspicions were correct, and the employee was sacked. When the worker took his case to tribunal, it found in favour of Scottish Water, although it did say that covert surveillance of someone at home would suggest that their right for a private life had been invaded.
What counted in Scottish Water’s favour – apart from the fact its suspicions were justified – was that it had considered other methods, such as workplace surveillance, but deemed them insufficient. Warnock says HR professionals considering covert surveillance should also look at all other options first. “Do an impact assessment,” he says. “You don’t want it to be done thoughtlessly.”
However, it is not just legal challenges that employers need to be wary of. Ben Willmott, employment law adviser at the Chartered Institute of Personnel and Development, says covert surveillance can be very damaging for overall employer-employee relations.
“The issue of trust is critical to employee engagement, and our research into employee contracts shows that where employees feel they are subject to tight control in the workplace, they are more likely to have negative attitudes towards their employer,” he says. “Employees are then less likely to be committed and motivated at work.”
Willmott reiterates Warnock’s point that covert surveillance should only be contemplated if there is a strong, justifiable reason to believe an employee is engaged in fraudulent or criminal activity. But, as Kearns points out, companies are unlikely to actively monitor an employee and incur the expense of losing the services they provide unless they are pretty sure of their suspicions and have no other way of proving them.
“It is very, very rare for us to find that employers have been wrong in their suspicions,” says Kearns.
David Kearns on expert investigations
“An electrical company we worked with had one of its electricians off sick with stress. He had been off for six months, came back to work for a month, then was off for another four months, saying he was too depressed to go out and had no confidence dealing with people. The company thought he was malingering so put him under surveillance and on day one he got into his van, went to a cash and carry and bought a lot of toys. He went to a permanent market stall where he was running his own business selling the toys. An officer with a covert camera spoke to him, bought something, got an invoice etc. We presented this evidence to the client, they challenged him and he resigned.”
“A senior manager at a company set up his own product company and was allegedly producing products for the company he worked for. He raised invoices and his line supervisor signed the cheques to pay them (not knowing they were fraudulent). The HR director raised his suspicions after seeing an invoice that had been paid twice. We went to Companies House and discovered the company secretary was from the village where this person lived. We data-mined his computer and went to see the person documented as his secretary and got a witness statement from her. He had been her boyfriend when she agreed to have her name put down as his secretary. By this time he had made £40,000. He resigned as soon as the company challenged him.”
“We were investigating the integrity of members of the board at a large logistics company concerning some business contracts with suppliers. As part of our enquiries, we came across further malpractice. The financial director, who had received a backhander from a supplier, was also running a pension scam. He had opted out of the company pension and instead of paying contributions, he had the same amount paid on to his salary. But in actual fact, he hadn’t changed his pension arrangements and was still receiving his pension. This amounted to in excess of £70,000 over three years. We found that the HR director was doing the same. They both resigned.”