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.