Recent decisions of the ICO (Information Commissioners Officer) and the EAT (Employment Appeals Tribunal) have placed renewed focus on these issues. However, is this something new or are these decisions just telling us what we already knew?
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.
What happened between the employee and employer?
The employee had told a few people that she felt housebound as a result of anxiety and stress and the employer thought that the employee would use this period of absence to avoid attending meetings that she was required to attend. No actual evidence was produced by the Council to justify that conclusion, but there was no medical evidence to show that the employee was indeed housebound. Interestingly however, the employer did not take any measures to discuss the employee’s sickness absence with the employee but instead just decided to resort to covert surveillance. Despite what the employer believed, the employee did actually attend a meeting which took place shortly after the surveillance had been carried out, without being aware that the surveillance had been conducted.
The report which was produced by the surveillance company was never actually used despite the report verifying that the employee was not housebound. However, the employer made reference to the covert surveillance in subsequent discussions with the employee who then complained to the ICO. They made it clear that covert surveillance to monitor employees’ behaviour can be justified but only in limited circumstances. Firstly, the behaviour which is suspected has to be serious behaviour. It is certainly not sufficient simply to believe, without any evidence, that an employee might not attend one or two meetings. Employers also need to carefully consider the reasons why the individual should not be told that monitoring is taking place. There should also be evidence that the employer has considered alternatives to covert surveillance and that there is evidence of why the employer believed that those alternatives were not viable.
So does this change anything?
In my view it does not. 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.
What about secret recordings – even if these include disciplinary and grievance meetings?
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 can not 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.
However there has been at least one occasion where a secret recording has been made of discussions which took place in private after the general disciplinary and grievance meetings, where a decision about the outcome of those meetings was being discussed. The EAT have confirmed that where the secret recording is of part of the legitimate decision making of a grievance and disciplinary panel those recordings will not be admissible as there is a general expectation that recordings of private deliberations should remain just that, namely private. However, it is also possible that as part of those meetings, perhaps at the end when a decision has been made, that there are other discussions of a more general nature which are also recorded and which an employee might want to rely upon because of comments or remarks made. The EAT has confirmed that where those discussions can be recognised as not being part of the private deliberations of grievance or disciplinary panels that that evidence could be admitted.
My advice for employees and employers
The picture therefore is confusing. 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. If nothing is said or done which justifies any criticism then managers have nothing to fear. It always appears rather desperate when a manager is trying to exclude evidence which has been secretly recorded. The Tribunal of course hears first of all what has been said and what is trying to be excluded and managers in those circumstances can appear over defensive which then damages their credibility. Managers who behave in a fair, reasonable and professional manner therefore have nothing to fear.
For further information on covert surveillance and secret recording or any other employment law matters, please contact our Employment Law & HR team on 0161 475 7676.