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Checking on staff activities in work time

You send your housekeeper, nanny, chauffeur or indeed any member of your domestic staff out on an errand for you; instead of taking an hour, it takes three hours.

When questioned, there is a story of delays, queues and so on which you accept.  Then it happens again.  And again.  Now you’re not so sure, in fact, you’re highly suspicious.

So you follow him or her, and video them using your smartphone doing their own shopping, playing tennis, or anything other than working for you.  When you are paying for their time.

Can you use that as sufficient cause for dismissal?

It’s not an easy one to answer, as you would have had to have already gone through the process of verbal and written cautions.  That is the course of action you should take.

If however, you have reached the end of the process (and for this you MUST take professional advice) you may terminate their employment.

At a recent Employment Appeal Tribunal it was ruled that such covert surveillance was justified and the appellant lost the appeal against unfair dismissal.  However, there are, as always, caveats:

  • Employers should not take this to mean that blanket covert surveillance of employees will now be allowed.  The EAT highlighted that the video footage had been filmed in a public place and so the employee could have no reasonable expectation of privacy
  • In this instance, the ex-employee had also been sending messages saying he was still working, effectively defrauding his employer.
  • It must be remembered also, that employers must also comply with data protection principles; in particular Part 3 of the Data Protection Employment Practices Code provides guidance on monitoring including covert monitoring.

So, always take professional advice before entering into any process with an employee.

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