- Workers have the right to make a subject access request – do you know how to respond to this?
- Do you understand the 8 principles under the Data Protection Act that everyone responsible for using data (including employers) has to follow?
- How does the Data Protection Act affect an employer’s ability to monitor employee’s telephone calls and e-mails and use CCTV in the workplace?
To be up to speed on Data Protection refer to the latest edition of Tolley’s Employment Law, published by LexisNexis and updated by FG Solicitors.
Click below to see an extract from our chapter which includes information on monitoring at work:
Click here for Extract
Should you wish to purchase the latest issue, please click here:
Contact us to discuss any data protection/employment law issues on firstname.lastname@example.org
SUMMARY: A council in Wales has been warned about its future conduct after carrying out covert surveillance of an employee in breach of the Data Protection Act 1998
Circumstances of the warning
The ICO (Information Commissioner’s Office) has reported that the following occurred at Caerphilly council, resulting in a warning:
- An employee was off work for 4 weeks with a sick note for anxiety and stress when covert surveillance was authorised.
- The employee had told a few people that she felt housebound and the employer believed that she would use the absence to avoid attending meetings she was required to attend at work.
- There was no medical indication that the employee was housebound.
- No other measures were taken to discuss the employee’s sickness absence and potential attendance at meetings before resorting to covert surveillance.
- 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 report which was produced by the surveillance company was never used despite the report verifying that the employee was not housebound.
Breach of the Data Protection Act 1998 (“DPA”)
The Commissioner’s view was that there were not sufficient grounds at this early stage of the employee’s sickness absence to justify the authorisation of covert surveillance. The Commissioner therefore considered that the covert surveillance of the employee’s activities was unfair and in breach of the First Data Protection Principle (which is to process personal data fairly and lawfully).
How can employers comply with the DPA when carrying out CCTV surveillance of employees?
The ICO has made it clear that covert surveillance to monitor employee behaviour can be justified in some circumstances. However the employer must:
- be satisfied that there are grounds for suspecting criminal activity or equivalent malpractice (i.e. serious but non-criminal employee misbehaviour such as fraudulently claiming sick pay);
- be satisfied that notifying individuals about the monitoring would prejudice its prevention or detection. Keep records of these details; and
- consider alternatives to covert surveillance which respect the employee’s privacy and keep a record of the reasons why these alternatives are not viable/appropriate. The ICO Employment Practices Code advises conducting a written impact assessment which must:
- clearly identify the purpose(s) behind the surveillance and the benefits it is likely to deliver;
- identify any likely adverse impact of the surveillance;
- consider alternatives to surveillance or different ways in which it can be carried out;
- take into account the obligations that arise from the surveillance; and
- judge whether the surveillance was justified.
Particularly consider whether a medical report should be obtained and whether a discussion should take place with the employee – both of which we would advise carrying out in most cases; and
- only use covert surveillance in exceptional circumstances as a last resort when all the above points have been satisfied. Covert surveillance should only be authorised by senior management.
When authorising and following the authorisation of covert surveillance, after the above steps have been completed, the employer must:
- ensure that any such surveillance is strictly targeted at obtaining evidence within a set timeframe and that the surveillance does not continue after the investigation is complete;
- not use covert audio or video monitoring in areas which workers would genuinely and reasonably expect to be private;
- if a private investigator is employed to collect information on workers covertly ensure there is a contract in place requiring the private investigator to only collect information in a way that satisfies the employer’s obligations under the DPA. The contract should impose requirements on the investigator to only collect and use information on workers in accordance with the employer’s instructions and to keep the information secure.
- Disregard and, where feasible, delete information collected in the course of monitoring unless it reveals information that no employer could reasonably be expected to ignore or is used for the prevention or detection of criminal activity or equivalent malpractice.
Employers can find further information on surveillance in the ICO’s Employment Practices Code.
If you are considering covertly monitoring an employee or conducting an impact assessment in relation to covert surveillance we can advise – please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
“I recently had cause to seek advice from FG Solicitors. The quality of the advice I received was exemplary and the level of service excellent. Calls were returned in good time, agreed actions were completed as discussed and help was available when needed. In what was a very difficult and stressful time for me the team at FG were sensitive and accommodating and most importantly they delivered my key objective. I would not hesitate to recommend FG Solicitors to anyone requiring employment law and HR related advice.”
The last thing any business owner wants is a lawsuit. If you’re careful it’s an avoidable business risk, unless you have outdated employee contracts and policies. Then you may be risking one of your employees taking action against your company.
Employment law is continually changing. To protect your company you need to ensure your employee contracts and policies are updated and maintained on a regular basis. At FG Solicitors we specialise in Employment Law and proactively work with our clients to ensure their documents are working for them.
If you want to find out more or get in contact please visit http://www.fgsolicitors.co.uk/hr-review/
SUMMARY: Employment Appeal Tribunal upholds the decision that an employee with a depressive and anxiety disorder did not have a disability.
Legally, an employee is considered to have a disability if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities.
This is a fairly wide definition and due to its specific reference to “mental” impairment”, can include depressive and anxiety-related impairments. However, if there is doubt as to whether an employee has a disability, the definition is considered in detail by an employment tribunal. The tribunal will analyse whether all the parts of the definition are satisfied, which is an activity which the tribunal had carried out in this case.
Part of considering whether the impairment constitutes a disability includes considering the effect on the employee’s ability to cope in their job.
If an employee is disabled, this will have implications for an employer, including a duty to make reasonable adjustments for the disabled employee.
Facts of the case
In the recent case of Mr R A Saad v University Hospital Southampton NHS Trust and Health Education England Mr Saad had a depressive and general anxiety disorder.
The employment tribunal held that Mr Saad was not disabled because although he had a mental impairment, this did not have a substantial adverse, nor long-term, effect on his ability to carry out normal day-to-day activities.
The employment tribunal considered Mr Saad’s evidence to be unsatisfactory as to the effect of the impairment on him. It noted that his oral evidence qualified, or contradicted, his earlier evidence as to the effect of his impairment on his day to day activities.
Mr Saad appealed this decision to the employment appeal tribunal (EAT). One of his arguments was that the tribunal had not considered his ability to communicate with colleagues, access the work-place and concentrate. Amongst other things, he referred to his inability to read two medical textbooks.
The Employment Appeal Tribunal’s (“EAT’s”) decision
The EAT upheld the tribunal’s decision that Mr Saad was not disabled. The EAT considered that the tribunal had considered the impact on his workplace-related activities including his ability to communication with colleagues, access the work place and concentrate.
What does this mean for employers?
Although in this case it was decided that the depressive and anxiety disorder was not a disability, it is clear that such a disorder can be a disability in some cases. Each case depends on the specific circumstances of each employee. In this case, the employment tribunal had concerns about the quality of the employee’s evidence but in other cases, an employee may give more compelling evidence as to the effect of a mental or physical impairment on his day-to-day activities.
When managing sickness absence, including mental impairments, employers should seek medical evidence and legal advice, especially if there is any uncertainty as to whether there may be a disability.
For more information about this case or managing sickness absence, please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
Step 1 to a Happy and Prosperous New Year for your Business!
You may believe it’s too late to be making New Year’s resolutions; we at FG Solicitors do not think so.
This latest edition of the FGazette is packed with key employment law updates to enable you to kick-start achievable solutions for change within your business and identify the resources to help you accomplish them.
Click on the image to read and don’t limit your resolutions to January 1st!
If you have any problems viewing this link, please contact us on 01604 871143 or email@example.com