A council that ordered covert surveillance on a sick employee must review its approach after an Information Commissioner’s Office (ICO) investigation.
The ICO found the Council breached the Data Protection Act when it ordered the surveillance of an employee suspected of fraudulently claiming to be sick.
From the undertaking, this summary of what happened:
The Information Commissioner (the ‘Commissioner’) received a data breach notification on 28 November 2013 relating to covert surveillance which had been undertaken on an employee suspected of defrauding the data controller in breach of the sickness absence policy.
The Commissioner accepts that the use of covert surveillance to monitor employee behaviour can be justified in some circumstances. However, as set out in s.3.4.1 of the Commissioner’s Employment Code of Practice, in order to justify such action the employer must be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice, and that notifying individuals about the monitoring would prejudice its prevention or detection. Abuses of an organisation’s sickness policies can amount to such malpractice, but covert surveillance should only be used in exceptional circumstances as a last resort when alternatives which respect the employee’s privacy have been considered and are not viable/ appropriate.
On the specific facts of this case the Commissioner does not consider that the data controller had sufficient evidence to warrant the authorisation of covert surveillance on an employee. In this case the employee had only been off work with a sick note for anxiety and stress for four weeks at the time the surveillance was authorised. The surveillance was authorised on the basis that the employee had told a few people that she felt housebound and the data controller believed the employee would use the absence to avoid attending meetings she was required to attend at work.
However there was no medical indication that the employee was housebound and no other measures were taken to discuss the employee’s sickness absence and potential attendance at meetings before resorting to covert surveillance at such an early stage. The data controller has accepted that there had been no evidence to suggest that the employee would use the sickness policy as a basis for not attending the meetings she was required to attend. In fact the employee attended a meeting which took place shortly after the surveillance had been carried out without being aware that the surveillance had been conducted.
The data controller has also confirmed that the report which was produced by the surveillance company was never used. This was despite the report verifying that the employee was not housebound.
Given the above it is the Commissioner’s view that there were not sufficient grounds at this early stage of the employee’s sickness absence to justify the authorisation of covert surveillance.