Stephen Meyerhoff of Backhouse Jones Solicitors discusses things to consider if you intend to use surveillance film in a disciplinary procedure.

By Stephen Meyerhoff, Backhouse Jones Solicitors

There may have been times that you have suspected that one of your employees who is on sick leave is not actually as sick as they say they are. Furthermore, if you have cast iron evidence that the employee is not ill at all, it may, in such circumstances, be tempting to jump straight to dismissal.

The Employment Tribunal recently handed down its decision in the case of Pacey v Caterpillar, in which they upheld a claim for unfair dismissal, criticising the employer for not obtaining a medical report to support its CCTV evidence.

The Claimant had worked for Caterpillar for 11 years until his dismissal in March 2010. Prior to his dismissal he had sustained a back injury whilst working for the Respondent and was unable to attend work as a result of the injury. During his absence he was signed off by two doctors as unfit to work.

Despite having two supporting doctors’ reports in his favour, the Respondent did not believe that the Claimant was genuinely sick. Therefore, the Respondent hired a private investigator to follow the Claimant.  The Private investigator produced video footage of the Claimant carrying out his normal day to day activities even though he was signed off work sick. The footage showed the Claimant clearing ice off his car, carrying his shopping and walking his dog. When the Claimant returned to work he was shown the CCTV footage and was dismissed by the Respondent for gross misconduct on the basis that he had fraudulently claimed company sick pay.

During the investigation meeting the Claimant said that his doctor had told him to do light exercise and to do as much as possible to assist him to get better. The Claimant stated that the activities shown in the recorded CCTV footage were consistent with his doctor’s advice. The company decided to consult the Claimant’s doctor in this regard. The doctor did not receive the CCTV footage and so did not view it, but rather he received a written account of what was shown on the CCTV.

The Claimant’s doctor stated that the Claimant was genuinely in pain and unable to carry out many activities and had told the Claimant to undertake light exercise to assist his recovery. The doctor stated that the Claimant could undertake most activities in the CCTV footage. However, despite all the evidence in the Claimant’s favour the Respondent decided to dismiss him for gross misconduct.

When the Claimant brought a claim for unfair dismissal the Tribunal upheld the claim, holding that the Respondent’s investigation had been wholly inadequate. The Tribunal could not comprehend why the Respondent did not instruct a medical expert prior to making a decision on the Claimant’s employment. They stated that medical evidence should have been used in conjunction with the CCTV evidence and that failure to do so was the main contributing factor to the Tribunal’s decision.

CCTV is widely used both in the workplace and in public. It is used to catch thieves, time wasters and those pretending to be sick. However, if an employer wishes to use CCTV evidence in court or in an Employment Tribunal they first have to consider whether the film is admissible as evidence, namely whether it is covert evidence or not.

CCTV evidence can be used without breaching the provisions of the Human Rights Act as the Act only relates to covert CCTV footage.   Once the CCTV footage has been obtained, in addition to the Human Rights Act which prevents the use of covert CCTV footage, employers should also consider the effects of the Data Protection Act 1998. This Act does not prevent CCTV monitoring in the workplace but it does lay down rules of how such footage can be used. Before introducing any sort of CCTV surveillance the employer should make it perfectly clear to the employees what the CCTV surveillance is for and what benefits it will bring.

In summary, a prudent employer will use either CCTV surveillance or CCTV footage to ensure that employees who are off work sick actually are indeed sick. However, in such circumstances an employer should back up CCTV evidence with a medical report to ensure that they are not subject to a successful Employment Tribunal claim.  Furthermore, if an employer wishes to use CCTV to monitor employees in the workplace it is advisable for that employer to inform the employee that they are being monitored and also why they are being monitored. This will help the CCTV evidence that is subsequently obtained to be admissible as evidence in court or the Employment Tribunal.

For further information regarding the admissibility of CCTV evidence please contact Steven Meyerhoff on 01254 828300 or via e-mail at steven.meyerhoff@backhouses.co.uk.