It may come as a surprise to many people, but employers are permitted to employ private detectives to investigate their staff. The main reason they would choose to take such action would be for the protection of the business and/or it’s assets.
What an employer is not allowed to do is use a private detective for speculative purposes. Article 8 of the human rights act is the right to respect for private family life. Although the article only specifies government agencies should not interfere in private life, save for the detection of crime, and in the interests of a free society, it does not mean it holds no relevance when an employer decides to put an employee under surveillance.
Before authorising surveillance against an employee, the employer should be clear that any intrusion should be minimal, and necessary.
In the example of an employee off sick but working elsewhere:
If the employer holds information as to where the employee is working, it must be considered whether a phone call to the other business would confirm this. If not, then it would only be necessary to obtain pictures of the employee arriving at, and departing from the workplace. It could be deemed excessive to follow them to and from the workplace as it adds little evidential value to the report, and the employees activities outside the working hours are of no relevance in this case.
If a member of staff was caught working and dismissed one possible outcome is that they would pursue a claim of unfair dismissal via a tribunal. Should any surveillance be seen to be excessive, then the evidence obtained during the surveillance may be dismissed. Without that evidence the employee may then win their case. This matter was explored during the case of McGowan V Scottish Water. The tribunal accepted that using surveillance at an employee’s address was an intrusion of privacy, but decided that the proportionality of the intrusion was the important factor.
Ways in which a Private detective can Assist an Employer
In the workplace
A private investigator may be call in to the workplace by an employee to investigate internal theft, drug misuse, computer misuse and accidents. Not all cases will involve staff being under investigation. For accidents it may be that the employer simply wants an expert opinion as to how the accident occurred, and preventing it happening again. For internal theft it may be that the person responsible is identified and dealt with accordingly, or just the mechanism by which the thefts occur is identified, and closed down.
Outside the workplace
As well as the often highlighted cases of fraudulent sick leave there are other ways a private detective may assist an employer outside the workplace. If a member of staff is suspected of assisting a competitor by selling confidential information, or passing on classified documents then an investigator will assist in identifying who, where and when. If company vehicles or assets are being misused then a private detective could help find evidence of this.
If you are an employer and wish to discuss the options open to you regarding investigation of employees then please contact EJM Investigations private detective agency on 01772 334700