News
Private investigators in the workplace: foul or fair?
First published in the Independent, 5 December 2007.
1 February 1981 was a particularly significant day in the development of television. It marked the arrival of MTV - which appropriately commenced broadcasting by playing the Buggles' Video Killed the Radio Star.
What followed over the next couple of decades was a rapid rise in the prominence of video in our society. First came reality television shows which used viewers' home footage (for example, Rescue 911) and culminating in the zenith of video information, YouTube.
But what about in a workplace? Is it acceptable to hire a private investigator to take video footage of one your employees?
This principle was tested in a recent case in England, Corus UK Limited v Mainwaring (Unreported, Employment Appeal Tribunal, 22 June 2007).
Mainwaring was employed by Corus as a crane driver, and had worked in his job for over 30 years. In 2002 he began to suffer from back problems which meant he was absent from work.
In one year he was absent for a total of 137 days. Unfortunately, his back problem recurred on a number of subsequent occasions, and, at his employer's expense, he was prescribed medication and physiotherapy.
The employer used an occupational health adviser to assist Mainwaring in his rehabilitation. On 16 March 2006, the specialist examined Mainwaring and said that he was not fit for work, but would be fit for light duties in two weeks' time.
At about this time, however, the company received an anonymous "tip off" from another employee suggesting that Mainwaring was behaving inconsistently with back problems. In response, the employer hired a private investigator to undertake surveillance of Mainwaring.
The private investigator obtained covert video footage of Mainwaring which, among other things, showed him loading shopping bags into the boot of his car, unloading the shopping and walking along the street going to a betting office.
The employer showed the video footage to the occupational health specialist, who reacted with surprise. He said that the footage was inconsistent with the information that Mainwaring had provided about his condition and indicated that he was able to perform tasks which were inconsistent with the symptoms that Mainwaring had described during consultation.
The employer took this very seriously and called Mainwaring to a disciplinary meeting.
Mainwaring provided some explanation but could not convince his employer. Corus concluded that Mainwaring had dishonestly reported himself as being unable to work through illness when in fact he had been fit to do so. It dismissed him.
The Employment Tribunal found that Mainwaring had been unjustifiably dismissed (largely on the basis of a number of procedural flaws). The employer succeeded on appeal, however, and the matter has been referred to a fresh tribunal for its consideration.
Perhaps the curious feature of the case, however, is the Tribunal's ready acceptance of the appropriateness of an employer obtaining video footage of an employee - off work premises, and during a period of sick leave. Is it reasonable for an employer to react to a "tip off" by obtaining information in this way?
Generally, under New Zealand law, the answer is yes.
As a general proposition an employer is entitled to observe its employees in the performance of their duties. This principle also extends to observing employees during a period of leave where there is a reasonable basis for believing that leave may have been granted on a dishonest representation.
Surveillance may even be deliberately carried out in such a way that the employee is not aware of it, and, in fact, the Employment Court has held that covert observation may well be the preferable course of action in some cases.
The employer must, however, continue to act in good faith including through its agent, the private investigator. The investigator must not do anything which destroys or damages the relationship of trust and confidence including not lying to the employee if confronted about their identity or purpose (for example, where the covert filming is discovered by the employee).
This conclusion may seem incongruous to many employees, who may have held the belief that they were entitled to more privacy in their work-related activities.
And the Privacy Commissioner does sound a word of warning about such surveillance. It should only be undertaken where there is no other reasonable option open to an employer to discover dishonesty - and, where possible, some prior warning should be given to employees who may be subjected to surveillance.
These matters aside, New Zealand employees should be aware that private eyes may indeed be watching you.
