Stings and honey traps – why it was OK to ‘scam’ Sam29 Sep 2016
The recent events surrounding the now former manager of the England football team, Sam Allardyce, may say something about the impact of a huge influx of money into the game of football in recent years but it also highlights a much less publicised yet common issue that affects us all. It’s an issue which arises through the dangerous combination of two factors: the ubiquity of mobile phones with their high definition sound and picture recording facilities, and the ambiguity in defining where a person’s private life begins and ends.
Big Sam may have been paid the best part of £3million per year more than most people but there are some important principles that can be gleaned from his misfortune.
Here are a few key questions that both employers and employees should consider.
What is covert surveillance (‘CS’)?
It is the practice of monitoring a person’s behaviour without their knowledge. This can be achieved by a number of methods, the most common being making audio or video recordings of conversations, engaging a private investigator, monitoring a person’s online information (e.g. Facebook, Twitter), monitoring employees’ email accounts, phone calls or internet usage.
Is covert surveillance admissible in Tribunal proceedings?
It depends. There is no specific law that rules out the admissibility of CS, and the Tribunal has a wide discretion to determine what evidence (including covert surveillance) is admissible. Factors that are considered are:
• Whether the CS is relevant to the issues between the parties.
• How late in the proceedings the CS is presented.
• Whether any rights under the Human Rights Act 1998 would be breached.
• Public policy.
Does covert surveillance affect the fairness of any grievance or disciplinary procedures?
Again, it depends. Tribunals have addressed this question on many occasions, and their decisions are often fact sensitive. Some general principles of guidance are:
• A procedure will not necessarily be unfair because the employer has undertaken CS, provided the overall investigation was fair.
• A Tribunal should not concern itself with the moral or social consideration of an employer using CS, only the extent to which the CS affects how the investigation was carried out.
• The manner in which the CS is used may be unfair, rather than the CS itself.
Can employees undertake CS of their employers?
Yes. However, whether it is admissible will depend on the nature of the claim and seriousness of the issues. For example, in an unfair dismissal case, CS of the disciplinary hearing itself may be presented, but recordings of any private panel discussions are unlikely to be admissible.
However, if the claim involves discrimination (which the Tribunal considers to be a matter with greater seriousness), recordings of private deliberations may be admissible, depending on the issues.
As mentioned above, many Tribunal decisions are based on the factual differences and nuances of any one claim. Care should be taken, therefore, not to place too much reliance on CS, as case law shows that outcomes are uncertain. Much will depend on the nature of the employee’s misconduct and the issues at hand.
How can I monitor employees suspected of wrongdoing?
Under data protection laws, organisations are permitted to monitor employees’ telephone calls, emails, internet access, etc. only in certain circumstances. Employers should consider:
• Conducting impact assessments to balancing employees’ rights with the needs of the business.
• Assessing if monitoring is a proportionate response.
• Ensuring data collection is targeted to a specific requirement e.g. establishing misconduct.
• Publishing clear monitoring policies in staff handbooks.
Additional care should be taken in relation to the monitoring of telephone calls due to the impact of the Regulations of Investigatory Power Act 2000 (RIPA) and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 which require employers to get consent for monitoring calls and making all reasonable efforts to inform users that in the interception of their call may occur.
When can CS/employee monitoring go wrong?
By carrying out full impact assessments the employer may not need the consent of the employees, unless sensitive personal data is being collected. However, a failure to carry out impact assessments may result in any data being inadmissible in any subsequent claims relating to employee dismissals, and an employee may allege that their right to a private life under the Human Rights Act has been breached.
There are also criminal and civil sanctions for companies that fail to comply with enforcement orders under the data protection legislation or who breach the terms of RIPA or the Telecommunications Regulations.
There are many issues of legality around CS and monitoring employees. If you are considering this as an option, it would be sensible to seek legal advice beforehand to reduce of the risk of any CS or data being found to be inadmissible in subsequent proceedings, or worse, criminal or civil penalties.
In practical terms, all parties should be alive to the ease with which technology allows recordings to be made. Some employers write into their grievance and disciplinary procedures express prohibitions on taking electronic devices into meetings, however, these will not prevent the tribunal using its discretion to allow the recordings into evidence.
One inescapable fact which these events serve to demonstrate is that the boundaries of our privacy may be a little closer than we think.