Spotlight on: undercover investigations

As with any successful relationship, there has to be trust between employer and employee. Yet when a member of staff is suspected of wrongdoing, it may be tempting to resort to undercover monitoring, or to hire private investigators.

But an ever-growing body of legislation around privacy means that too much ‘snooping’ could end in a tribunal.

In 2003, London Underground signal maintenance technicians demanded that their employer, Metronet, remove covert surveillance cameras that had been discovered at Baker Street station. It took the threat of legal action for an infringement of human rights and a proposed strike ballot before the company agreed that all covert surveillance devices would be removed.

Derek Kotz, spokesman for the RMT union, which supported the Metronet workers, says that too many employers make a habit of using undercover surveillance. “Employers taking this route are using scare tactics, which only result in people becoming too afraid to come into work,” he says.

Another case that made the headlines was London Underground driver Chris Barrett, who was sacked in 2004 after being caught on camera playing squash while on sick leave with an ankle injury. Barrett’s claim that he had been advised to exercise to help his ankle injury was upheld by the tribunal, resulting in a reported £8,500 settlement.

Kotz says this case illustrates that employers are often too quick to point the finger of blame. “When it comes to sickness absence, employers should view health problems sympathetically and offer support, not address it as a disciplinary issue,” he adds.

Ben Willmott, employee relations adviser at the Chartered Institute of Personnel and Development, agrees such investigations should be a last resort. “The vast majority of absence is genuine. Rather than investigating staff, HR should focus on building strategies to help employees back to work,” he says.

However, if you do suspect a member of staff, there is legislation to support certain levels of monitoring. Regulations introduced in 2000 give employers the right to monitor workers’ e-mails and phone calls if they have concerns.

But if this is done behind an employee’s back, you could be breaking the law.

Sarah Turner, head of employment at law firm Turner Parkinson, explains: “If you do not have the employee’s consent to monitoring, you must be acting within the scope of the regulations and have good reason if you are to avoid costly tribunals. Examples of grounds for monitoring under the regulations are to prevent or detect crime, or to investigate or detect unauthorised use of the telecommunication system,” she says.

As for undercover cameras, Turner says to tread very carefully. “Employee surveillance clearly has human rights implications if not justified or carried out reasonably,” she adds.

Surveillance: what to watch out for

  • Be clear about the reasons why you need to monitor employees
  • Be sure to exhaust all other avenues to get to the root of the problem
  • Base all investigations on fact, not speculation
  • If going undercover, seek legal advice on how this could affect employees’ human rights

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