ICO ISSUE WARNING ON COVERT SURVEILLANCE BY EMPLOYERS

Recent decisions of the ICO (Information Commissioners Officer) and the EAT (Employment Appeals Tribunal) have placed renewed focus on the issue of covert surveillance by employers and secret recordings by employees, reports SAS Daniels’ Jonathan Whittaker.

As a result of covert surveillance of an employee who was off work for four weeks with a sick note for anxiety and stress, the ICO has issued a ‘warning’ to a Council in Wales about its future conduct.

A full account of the case can be found HERE of what happened between the employee and employer?

Jonathan Whittaker, (left) Senior Partner at SAS Daniels LLP said:

“The ICO made reference to the possibility of obtaining a medical report in such circumstances. If asked I would have been shocked to learn that a client thought that covert surveillance was the way forward. In any circumstances involving sickness absence I would always advise a client to obtain a report, possibly from occupational health, especially when the reason for absence was ‘anxiety and stress’.

“There are many other steps which the Council could and should have taken in order to meet the ‘Best Practice’ guidelines for dealing with stress related absence which have been issued by the Health & Safety Executive. There is no evidence to suggest that the council even considered these alternatives and in my opinion it is not surprising that the ICO warned them about their future conduct.”

So what about secret recordings – even if these include disciplinary and grievance meetings?  

Jonathan continued:

“This is so easy to do now with the technology available on even an average mobile phone. I know that clients are often really annoyed when this happens and they usually want to take some form of disciplinary action for deception! Unfortunately however, the EAT have restated the general rule which is that relevant evidence is admissible even if it has clandestine origins. The starting point therefore, is that simply because these are secret recordings that is not going to mean that the employee cannot rely upon them. In general terms where it is the content of the actual grievance and disciplinary hearings which is secretly recorded, that evidence is likely to be admissible.

“My advice would be that employers should specifically ask whether or not any attempt is being made to secretly record meetings; they should insist on the production of all mobile telephones and make sure that they are retained outside of the meeting and only returned when those meetings have ended. A record should be kept of the requests made and the answers given by employees. However, even this cannot for certain prevent an employee relying upon something which has been secretly recorded, if at the end of the day it is evidence which a Tribunal believes will help it form a proper judgment about a claim which is being pursued by an employee. It is for example easy to see that comments of a sexual or racial nature which are secretly recorded would help an Employment Tribunal to form an opinion as to whether or not the person who has made those comments is more or less likely to have made similar comments in a different context.

“The best guidance to offer therefore is to make sure that managers should conduct themselves in all meetings in such a way that they would have nothing to fear even if secret recordings take place. For further information on covert surveillance and secret recording or any other employment law matters, please contact Jonathan Whittaker in our Employment Law & HR team on 0161 475 1225.