Tribunal: Employer claims to have video surveillance at home!

[tanglewood01]

I'm going through a tribunal at the moment for disability discrimination and harassment. I am off work due to various health problems.

 

I have this morning found out that my employer's solicitor claims to have video evidence but has so far failed to disclose it. My solicitor has applied for a disclosure order. I know for a fact there is no video evidence from my workplace and in any case, if there was it would support my claim. I feel this evidence has to have been obtained covertly of me at home or shopping as these are the only places I go with the exception of the doctors and the hospital.

 

I have struggled to find useful info about the law regarding employers doing this. Does anyone know about this or have any resources which may be useful?

[buzby]

Covert surveillance in a public place is fair game, especially if it disproves an assertion by the claimant. This goes to the heart of credibility of the claimant. However, there would be little point in the employers stating they have video when they did not. It would be better to review whow they are rejecting your claim, and then consider what you might have been seen doing that makes them feel confident that it weakens your case.

[rebel11]

http://www.yourrights.org.uk/yourrights/rights-of-workers/s-of-workers-the-european-convention-on-.html

[Offkey81]

I think you may have an interest in looking at the cases held on the employment appeals tribunal website http://www.employmentappeals.gov.uk . It has a number of judgements and I recall one where there was covert voice recording in a disciplinary hearing and further, during the discplinary hearing deliberations. This case answered the questions of whether this evidence could be used and the implications on Human rights (from memory). I beleive it stated something along the line that unlike the County and high court rules, a tribunal has a great discretion in whether it accepts this type of evidence (just had a check - here is the link http://www.employmentappeals.gov.uk/Public/Upload/06_0243ResfhMLNDA.doc ). It may help but it is quite an old case and there are others that will be more relevant it seems, so dont beleive it 100% plus I dont have an up to date book to check hoe reliable it is for you. The key words I think you need to seach for is in/admissability of tribunal evidence.

 

this one seems slightly more relevant http://www.thompsons.law.co.uk/ltext/l1450006.htm

Edited December 10, 2010 by Offkey81
poorly written

[Atlas01]

It's possible to be covertly monitored with some heavy onus on the weight of the offence you are alleged to have committed and who you work for (Public Authority)

 

see this as you didn't give much detail e.g. off with bad back then filmed carrying a piano on your shoulder, as your solicitor has made an order i would not worry too much, they will either have to disclose or state they don't have anything (as you stated "found out" this may depend on your source)

[tanglewood01]

Thank you for your replies - I've plenty of reading to do. I didn't realise I had any because I thought I'd receive email notifications. (Need to check my settings). Also, sorry for the lack of information - I was in the dark myself when I first posted but could have given more detail about my health...(Just in case anyone is concerned about what I write here, I am aware that these forums are public and as such my employer could identify me from the details I have provided but I don't have anything to hide)......I have degenerative disc disease - pretty much all discs in my lumbar spine are dead. I have bulging discs in my lumbar spine causing stenosis. Reduced sensation and muscle wastage on right hand side. Cramps and muscle spasms as a result. Insomnia & depression.

 

I have finally seen the DVD's. They show me and my step-children on my drive, cleaning 2 cars. It's perhaps ironic that I was cleaning the cars ready to sell as I couldn't afford them any more since my pay had been reduced then stopped. They have recorded me on a good day, being able to bend much better than usual. It does show my constant limp, awkward and painful walk. I still have some footage to review but there's hours of nothingness to skip through. What it doesn't show is that I was crippled after doing it! I feel the videos are very subjective and it gives me shivers that my children have by association been watched and recorded too. Despite these videos I'm still confident that I have a good case as the many reports and x-rays etc cannot be discounted as they are factual and physical findings. A couple of weeks after these DVD's I could barely walk and the physical findings when I saw the pain consultant again aren't something that you can 'fake'.

 

My concern is that they did not have grounds to watch me given the medication I'm on (23 tablets a day and counting), the MRI scans, the medical examination, my gp's letter, my evidence, the fact they were made aware I had a disability when I started working for them etc etc.

 

To top it all off, since I heard about these DVD's before Christmas I've been a wreck! I've only left the house once and that was to see my doctor about my depression medication. I've also started having anxiety attacks. I've known people who have them before but believe me, you don't know how horrible, debilitating a scary they are until you experience it yourself. I was a very confident, social person and now I'm too anxious to leave the house and taking meds for depression. It wasn't enough for them to rob me of my profession, my income, my stability, my capital (cars & guitars) and my privacy, they have stole a big part of who I am. I really hope they don't get away with this when we eventually go to tribunal.

 

All of this because I asked for a reasonable adjustment! The adjustment would not have cost them anything, would not have reduced my work rate (it would have increased it) and was something that able bodied employees were already doing!

[tanglewood01]

I've been away and done some reading. I'm in touch with someone about these issues but if they can't help, I'm going to get in touch with Liberty and/or the Equality and Human Rights Commission. From what I can gather, there is a breach of section 8 of the Human Rights Act. There may also be relevance to the Data Protection Act. Also, the footage is "Intrusive" so this may be relevant also.

I thought I'd list the main issues now I've read some legislation and see if anyone has any additional thoughts....

 

• At different times in the surveillance, the camera is focussed on my bedroom window, my neighbours kitchen window and through my kitchen window. They have captured a moment of intimacy between my partner and I in one of the shots through the kitchen window
  
• They have filmed me in my car
  
• They have filmed me speaking to several neighbours
  
• They have filmed my children - not just as they are there but have zoomed in on them!
  
• I don't think they had sufficient "proportional" grounds for filming me. I'd been off for 12 weeks and asked for reasonable adjustments - that's all!
  

[Mash It Up Harry]

I've been away and done some reading. I'm in touch with someone about these issues but if they can't help, I'm going to get in touch with Liberty and/or the Equality and Human Rights Commission. From what I can gather, there is a breach of section 8 of the Human Rights Act. There may also be relevance to the Data Protection Act. Also, the footage is "Intrusive" so this may be relevant also.

I thought I'd list the main issues now I've read some legislation and see if anyone has any additional thoughts....

 

• At different times in the surveillance, the camera is focussed on my bedroom window, my neighbours kitchen window and through my kitchen window. They have captured a moment of intimacy between my partner and I in one of the shots through the kitchen window
  
• They have filmed me in my car
  
• They have filmed me speaking to several neighbours
  
• They have filmed my children - not just as they are there but have zoomed in on them!
  
• I don't think they had sufficient "proportional" grounds for filming me. I'd been off for 12 weeks and asked for reasonable adjustments - that's all!
  

 

 

The use of covert surveillance can be a bit confusing, and sadly doing a bit of googling with some selective cut and pasting will not find a definitive answer for you.

 

The HRA does give people the right to privacy, however in the circumstances you have described, it is entirely possible that an ET could rule the evidence to be admissable.

A recent case - McGowan v Scottish Water - demonstrated this in practice. An employee claimed unfair dismissal, but his employer argued he had been forging his timesheets. The employer had carried out covert video surveillance of the employee's home to get evidence of when the employee left for and returned from work, and then compared those times with his timesheets. The issue in the tribunal was whether the video evidence breached the HRA because it had been obtained covertly and, therefore, ignored the respect for his private life. However, the court held that the surveillance operation was not disproportionate to the circumstances and was undertaken to protect the employer's assets. Therefore, the video surveillance was accepted as evidence. (To save time I have cut & paste the last few lines as it summarises quite concisely my view of the situation).

 

So at the moment, it's not guaranteed that your employers would get the surveillance included as evidence & I think the same applies to your assertion re proportianality. I would say that they could more than likely be able to successfully argue that it is proportianate, but obviously, unlike your solicitors, I am not in full possession of the facts.

 

For what it's worth, where I work, we have recently (in the last 12 months) successfully used covert video surveillance against an employee in similar circumstances to yourself (although in fairness, this was quite unique to us and it was the first time we ever undertook this line of investigation).

[tanglewood01]

Thank you for your reply Mash It Up Harry

 

I've read McGowan v Scottish Water. I picked up on a couple of points where my case differs. With regards to proportionality, unlike McGowan I was on sick leave so no risk to the public and even if I had been at work I think they would struggle to prove a risk to public safety. With respect to his claim regarding Human Rights, the tribunal commented that his wife could have been seen by anyone using that public road. The same cannot be said of the footage of my partner and me who were filmed in the car and through the windows of my house. They have focussed the camera on my neighbours window for some time and several of my neighbours have been filmed conversing with me. They should also have the right to respect for their privacy too. The property was on a relatively secluded cul-de-sac on an estate on the outskirts of town with no reason for anyone but residents and visitors to be there so it is not unreasonable to expect privacy.

 

The other part I looked at was the statement that 'the covert activity went to the heart of the investigation .....'. In my case they already knew my disability fluctuated, evidenced by two medical reports and from conversations with me. I have two documents from them where they acknowledge the intermittent and recurrent nature of my disability so they have only proved what they already knew. Hence my argument that it was not proportional.

 

There are some questions to be answered regarding the DVDs. The statement submitted regarding the DVDs differs significantly from what is actually shown. It also looks like footage has been 'cherry-picked'. They had been in possession of the DVDs for 5 months and done nothing with them.

 

I know that even if it was decided that the footage breaches the Human Rights Act the judge could still consider it but I will still have the option of taking action separately.

[SarEl]

I agreee with Mash It Up - what you are arguing is nt a clear cut as you think it is, and simplt demonstrates the problems of people reading what they want to hear into things they read. Both of you have vailid arguments but are reading the same case law! You have most certainly misunderstood the legal concept of privacy. The fact that you live in a sceluded cul-de-sac on the outskirts of town has nothing to do with it. Your property is located on a public road, and therefore members of the public are fully entitled to use that road without having to justify or explain themselves. So provide the surveilleance took place from a location where the public have a right of access, anything that may be seen from that location is, in effect, very possibly fair game - and certainly most things would be fair game. And I wouldn't put a lot of faith in yur taking action under the Human Rights Act unless you have legal backers - as I keep pointing out any form of covert surveillance (including audio recorders that accidentally go off in your pocket!) is unlawful under the Act, but the fact is that this is an Act which is rarely used (not least because of the costs involved and the lack of clarity).

 

To play devils advocate, you have presumably said that you are not fit to do your job (sorry - not sure of the details of the case), but on the basis of what you have just said, there may well be times when you are fit to do your job and don't go to work. I am not saying that is the case, but you are being entirely subjective about this. Such thinking doesn't win cases! The best position to start to argue a case is from the other side! That is what lawyers do. We construct the case from the point of view of the other side, then we test our case against that, amending each "side" with new strategies or arguments, to see how the final outcome will play out. You may well be outraged, but you have to put that to one side and work through the cases on both sides objectively. Unless you have backers for the legal side of a HRA case, forget the theory - concentrate on what is real and immediate, and will make a difference.

[mariefab]

I agree with SarEl, you need to focus on the matter at hand.

 

Your tribunal case appears to be that your employer failed to make a 'reasonable adjustment' requested on the grounds of a disability.

 

What do you think your employers are trying to achieve with the dvd?

 

Do they dispute that you have a disability that would qualify for protection under the Equality Act (or formerly the DDA)?

Or, do they contend that the activities shown in the dvd are the same as, or very similar to, the activities that your job requires that you requested should be altered as a 'reasonable adjustment'?

[tanglewood01]

I agree with SarEl, you need to focus on the matter at hand.

 

Your tribunal case appears to be that your employer failed to make a 'reasonable adjustment' requested on the grounds of a disability.

 

What do you think your employers are trying to achieve with the dvd?

 

Do they dispute that you have a disability that would qualify for protection under the Equality Act (or formerly the DDA)?

Or, do they contend that the activities shown in the dvd are the same as, or very similar to, the activities that your job requires that you requested should be altered as a 'reasonable adjustment'?

 

You're right but I took so long writing the reply to SaEl I timed-out you so beat me to it. Here it is:

 

Thank you for your reply SarEl. Your advice makes a lot of sense and is very useful, thank you. I'll try to clarify some things I've omitted:

 

I've also realised that I have failed to mention what is being challenged! When I lodged my grievance, the Director refuted everything I had said solely on the basis that he did not think I had a disability as per the DDA. I took my grievance all the way to the CEO and it was upheld in the manner in which I had been treated. (more about that below). They are concentrating their whole defence on saying I don't have a disability as defined by the DDA..

 

I haven't said I'm unfit to do my job. I'll try to summarise: I was off work as I'd had a flare up. While off I asked for reasonable adjustments to enable me to return to work. They refused to act and didn't give a satisfactory reason. (On a personal note, I started my first 'proper job' in 99. I have worked continuously since then without a break of more than a weekend between finishing one job and starting the next. I have had several jobs in this time due to the nature of the of the contracts which are usually funded for 21/24 months. In all of my previous jobs I have been able to make reasonable adjustments without any detriment to workload or finance or other team members and continued to work without long periods of sickness leave. I have a strong work ethic and am passionate about my work which broadly speaking is supporting vulnerable adults). I returned to work under the same conditions I had explained were affecting my health and ended up too ill to continue again. Whilst back at work I almost begged for help but I was just told over and over again that my issues had been dealt with. By dealt with they meant they wrote back to me and said they shouldn't cause me problems - again all without any assessment.

 

I asked for help to manage my condition so I could continue to work - with the same workload and without any additional cost. My condition has gradually become worse and the situation at work was aggravating it. All I asked for was to work from home as other employees already did. I was having to climb several sets of stairs many times a day, potentially had to park a long way from the office, had to ask someone to move so I could move from my chair, couldn't use my pedestal as there was no room for it and so on.

 

It was clear from the outset that my request wasn't even going to be considered. Their own policy on requests for adjustments was ignored. The manager I asked (worked in head office) did no assessment of my workspace, had never seen the office and didn't even know what floor it was on.

 

I lodged a grievance which was subsequently upheld with regard to the way I had been treated. The response asked that I agree to a medical to enable him to give a full response regarding my health. I agreed to the medical. The Doctors report agreed with everything I said - that I could work with these adjustments in place. He also stated that the adjustments I'd asked for were reasonable and that my disability in his opinion met the definition as per the DDA. Clearly this was not what my employer had wanted so now they are using covert surveillance they paid for to try discredit the medical they paid for.

Edited January 28, 2011 by tanglewood01
Last sentence was incomplete

[SarEl]

Are you sure about that last sentence? Because that would fly in the face of both your and their medical advice. Which would make little sense. In my experience, employers may be wrong, but they are rarely illogical. Apart from anything else, their legal advisors won't allow them to be! I suspect that the logic is very different - they may well be saying that your disability is not as bad as you say, and that you have manufactured its impacts in order to make a claim against an employer - arguing that you are being vexatious because of this. That's a pure guess. But it holds considerably more logic than trying to fly in the face of medical opinion.

[mariefab]

I would suggest that you focus your attention on 2 areas.

 

1. Disability

Back problems are tricky. Sometimes they qualify for DDA protection and sometimes they don't.

Can you provide evidence (preferably documentary) that you have a a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities?

 

2. The specific 'reasonable adjustment' you requested.

[tanglewood01]

It does sound ridiculous and illogical but yes - this is what they are arguing, that I don't have a disability as defined by the act. This was the discussion of a Pre Hearing Review. It was conducted by phone in my absence. My solicitor commented to me that the Chair sounded surprised they were contesting my status regarding the act.

[tanglewood01]

I would suggest that you focus your attention on 2 areas.

 

1. Disability

Back problems are tricky. Sometimes they qualify for DDA protection and sometimes they don't.

Can you provide evidence (preferably documentary) that you have a a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities?

 

2. The specific 'reasonable adjustment' you requested.

 

I am focusing on these in the most part but I was hoping to have the DVD evidence omitted. I am confident I can provide a defence but it would be more favourable not to need to. The evidence of disability that I have is:

 

• The Doctors report they commissioned
  
• My doctors letter to my employer regarding my condition
  
• X-Rays which show the degree of degeneration, the bulging discs and the narrowing space where the nerves are being impinged
  
• Physical findings from Doctors mentioned and pain management specialist - limp, limited flexation, muscle wastage, reduced sensation
  
• Acknowledgement of certain factors in letters from my employer. For example "in recognition of your intermittent back problems", "those having the most significant impact"
  
• Contract was transferred under TUPE to present employer. My manager was involved with informal reasonable adjustments under original contract holder
  
• Original contract holder's head of personnel confirmed in writing current contract holders were made aware of my disability, I was recorded on their HR system as having a disability, my application form stated I had a disability, they had made reasonable adjustments for me
  
• Over 12 years of medical records
  
• Painful treatments and 25 tablets a day including pain killers, anti-inflamatory tablets, tablets to relax muscles and reduce muscle spasm
  

[mariefab]

I'm not an expert but I would imagine that you would qualify for DDA protection. (I do and I only have RA.)

 

Given that your employers were already aware of all this you might not want to do anything about the dvd.

If they took this step after you initiated your tribunal claim, and they don't normally do this with employees who are not disabled but are on sick leave, I wonder whether you might consider that the dvd may constitute a form a victimisation. Especially considering the effect that this has had on you.

 

I would wait to see whether SarEl thinks that this could possibly to be something that could be added, by amendment, to your claim because I could be getting a bit carried away here.

 

What reasons have they given for refusing to permit you to work from home?

[SarEl]

Possibly - but to be honest I couldn't really commit to an answer either way, because I don't really understand what their reasoning is or the case they are trying to construuct. What is a reasonable action does depend on that. Although I think it would be possible to include it under the existing claim of harassment, as a further act. Assuming that the employer cannot justify it. I am somewhat perplexed by their action if they are attempting to argue that no disability exists (and a little perplexed by that argument), but that does not mean that they do not have a justifiable reason.

[tanglewood01]

I'm not an expert but I would imagine that you would qualify for DDA protection. (I do and I only have RA.)

 

Given that your employers were already aware of all this you might not want to do anything about the dvd.

If they took this step after you initiated your tribunal claim, and they don't normally do this with employees who are not disabled but are on sick leave, I wonder whether you might consider that the dvd may constitute a form a victimisation. Especially considering the effect that this has had on you.

 

I would wait to see whether SarEl thinks that this could possibly to be something that could be added, by amendment, to your claim because I could be getting a bit carried away here.

 

What reasons have they given for refusing to permit you to work from home?

 

The filming was done before even my grievance. All that had happened up to the point when they filmed me was I'd been off work for 12 weeks and had asked for adjustments. I hadn't considered the further victimisation (As other have suggested, I have been a little blinkered by my disgust at what they'd done). I also hadn't considered the point you made about whether they would film someone without a disability - this argument is stronger I think given that it pre-dates my grievance.

 

The reason they gave for refusing home working (without doing any assessment as per their equality policy and their home-working policy) was that I needed to make use of administrative support. I replied to this time and time again. In my job, everyone did their own admin. There was an admin officer who visited our office once a week and all she did for me was take my post which I did myself every other day of the week and I gave her stats to collate. Nothing at all that required me to be in the office permanently. I challenged this several times in writing and was ignored.

[tanglewood01]

The PHR has happened now and the tribunal agreed that I do have a disability for the purposes of the disability discrimination act so that's one major hurdle over! My representation only put forward my claim under article 8 of the HRA the day before the tribunal so understandably the tribunal was not impressed. I ended up winning it based on my verbal representation, treatment, medication and extensive medical history. In my view the Tribunal took a common sense approach in relation to the dvd evidence - i.e. less than 3 hours footage over two days in contrast to 13 years of medical history. The tribunal also commented that my representation had failed to specify what my claim was - only stating disability discrimination despite me telling them I wanted to claim 1. Failure to make reasonable adjustments 2. Harassment and 3. Disability Related Discrimination so this is to be the subject of a telephone CMD.

 

I had received advice from Counsel who agreed that I had a strong claim and that the Tribunal was likely to find in my favour and also find that my employer failed in their duty. They have advised resigning (mainly on the grounds of my employer 'spying' on me) and claiming constructive unfair dismissal. Any advice on this would be most welcome as my representation are dragging their heels. I've had a lot of issues with my representation and they have made many mistakes that the Tribunal commented on so I'm looking now for alternative representation but may end up doing it myself.

[honeybee13]

Hello again. Well done so far, that's a good result. We'll help you as much as we can if you decide to self-represent. I imagine you'd find it less scary now you've been to a hearing?

 

My best, HB

[SarEl]

The PHR has happened now and the tribunal agreed that I do have a disability for the purposes of the disability discrimination act so that's one major hurdle over! My representation only put forward my claim under article 8 of the HRA the day before the tribunal so understandably the tribunal was not impressed. I ended up winning it based on my verbal representation, treatment, medication and extensive medical history. In my view the Tribunal took a common sense approach in relation to the dvd evidence - i.e. less than 3 hours footage over two days in contrast to 13 years of medical history. The tribunal also commented that my representation had failed to specify what my claim was - only stating disability discrimination despite me telling them I wanted to claim 1. Failure to make reasonable adjustments 2. Harassment and 3. Disability Related Discrimination so this is to be the subject of a telephone CMD.

 

I had received advice from Counsel who agreed that I had a strong claim and that the Tribunal was likely to find in my favour and also find that my employer failed in their duty. They have advised resigning (mainly on the grounds of my employer 'spying' on me) and claiming constructive unfair dismissal. Any advice on this would be most welcome as my representation are dragging their heels. I've had a lot of issues with my representation and they have made many mistakes that the Tribunal commented on so I'm looking now for alternative representation but may end up doing it myself.

 

I wouldn't be impressed with a representative who recommended resigning and claiming constructive dismissal either. You never resign. Less than 3% of constructive unfair dismissal claims win. It is the hardest claim to win, and the burden of evidence falls on the employee throughout the entire case - something which applies to no other form of claim. I resignation also has to be an immediate - or near immediate response to a breach (and after exhausting an internal procedure), and since some time has passed since the spying took place, it would cast some doubt as to whether this would definitely hold up. I would suggest that you ask for a range of options with their pro's and con's. I would rarely advise a client that there is only one option - and certainly never when that option is a claim of constructive unfair dismissal.

[tanglewood01]

Thank you for your response SarEl I think the main basis of the advice was that they have breached the implied trust by spying on me. The issue I have is that with everything that has happened, I cannot see any way that I could return to work for them, even health permitting. I'm not sure what my options are and I'm struggling to get an answer.

[SarEl]

Yes - but the question is why didn't you resign when you found out about it - now isn't exactly an immediate response. And have you submitted grievances? What were the outcomes? And what are your other options. This isn't about whether you go back to work for them - it is about how wise it would be to resign and make the most difficult claim that you could possibly make rather than wait for the employer to do something!

[tanglewood01]

Yes - but the question is why didn't you resign when you found out about it - now isn't exactly an immediate response. And have you submitted grievances? What were the outcomes? And what are your other options. This isn't about whether you go back to work for them - it is about how wise it would be to resign and make the most difficult claim that you could possibly make rather than wait for the employer to do something!

 

Thank you SarEl. I was informed there were 'DVDs' in mid December and finally obtained copies in early January. I asked my adviser about it as soon as I saw them but was told to wait to see what Counsels opinion which was only received on Monday. I have been through the grievance process but in relation to discrimination - I was not aware of the DVDs at that time. My grievance was upheld in the manner in which I was treated. They said they could not provide a full response as they needed more information about my health. They asked me to have a medical and I agreed. The medical was very much in support of my disability being covered by the DDA and agreed that the adjustments I had requested were reasonable and would have addressed the necessary issues. This is the last time I heard from my employer - probably because I submitted an ET1 but if I had not done so I would have missed the three month deadline and potentially still have got nowhere with my employer (this had been going on for nearly a year before I applied to Tribunal). Should I consider a grievance based on the 'spying'?