Spying on employees – the risks!

15 January, 2015
by: Cripps Pemberton Greenish

The Information Commissioner’s Office (ICO) has released a decision and guidance on when employers can undertake covert surveillance of their employees.

The case concerned, Mrs Shaw, an English teacher who her employer (Caerphilly Borough Council) suspected of fraudulently claiming to be sick. In an attempt to clarify Mrs Shaw’s condition, the Council authorised the surveillance Mrs Shaw after she had been signed off work by her doctor with anxiety and stress for four weeks. The Council made no attempt to speak with Mrs Shaw regarding her absence before providing the surveillance company with a photograph of her and her home address. The covert surveillance undertaken included following Mrs Shaw around her local supermarket.

It was the ICO’s view that there were not sufficient grounds at such an early stage of the employee’s sickness absence to justify the covert surveillance. It concluded therefore that the Council had breached the Data Protection Act 1998 and it was told by the ICO to review its use of surveillance of employees. The ICO also required the Council to sign an undertaking to ensure its full compliance in the future.

The ICO does accept that the use of covert surveillance to monitor employees can be justified in some circumstances. In order for covert surveillance to be justified, an employer must be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice, and that by notifying the employee about the surveillance it would prejudice its detection. Covert surveillance should be a last resort when alternatives which respect an employee’s privacy are not appropriate. If an employer is considering using covert surveillance methods on an employee they must ensure that they follow section 3 of the ICO’s Employment Practices Code of Practice which provides guidance on conducting an impact assessment and covert monitoring.