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Surveilling employees on sick leave could cost you six figures

Surveilling employees on sick leave
Surveilling employees on sick leave

Advice from an HR consultant in Camden, London on why covert surveillance of absent employees is far riskier than most business owners realise, and what to do instead.


As a small business owner, you've probably had a moment where you suspected someone off sick wasn't being entirely honest.


Your instinct might be to gather evidence and deal with it quickly. That instinct could land you with a tribunal bill well into six figures. Recent cases have shown just how badly this can go wrong when employers act on suspicion without following the right process.


Here's what you need to know before you consider any form of monitoring.


Three employers who got it wrong


Three recent employment tribunal cases all followed a similar pattern. An employee was off on long-term sick leave. The employer doubted the legitimacy of the absence. Surveillance was commissioned. The employee was dismissed. And the tribunal ruled against the employer.


Let me walk through each one briefly.


Pilkington UK employed a team leader called Alan Jones, who was absent following treatment for cancer. He had been diagnosed with radiation-induced neuropathy. The company hired a surveillance firm, which filmed him at a friend's farm. Pilkington treated the footage as evidence of secondary employment and dismissed him for gross misconduct. No medical professional was asked whether the activity captured on camera was inconsistent with his condition. The company also shifted the allegation partway through the process without giving Jones a fair opportunity to respond. The tribunal ruled the dismissal unfair and awarded more than £329,000.


Aliaxis, a plastics manufacturer, had a warehouse operative called Neil Wilson off with chronic back pain. They hired a private investigator and reviewed his social media. Based on footage showing Wilson "moving freely," his employer stopped his salary and told him he could either resign, face capability proceedings, or be reported to the police. The tribunal found Aliaxis had been "overly eager" to remove him and ruled the dismissal both unfair and discriminatory. Wilson received £30,682.


BMW employed Mohamed Kerita as a factory worker. He was signed off by medical professionals with chronic back pain. BMW hired a security firm to film him. The footage showed everyday activities like walking and leaning over his car. BMW concluded he had committed fraud and dismissed him. The tribunal found that the medical evidence supported his inability to carry out his physically demanding role. He wasn't even receiving company sick pay at the time the footage was taken. The dismissal was ruled unfair and discriminatory, with a remedy hearing still pending.


The common thread


In all of these cases, the employers jumped from surveillance footage to dismissal without taking a critical intermediate step. None of them obtained proper medical input on whether what the footage showed actually contradicted the employee's condition.


They also failed to run a fair process. Allegations were changed without notice. Employees were pressured into resigning. Decisions were made before the individual had a genuine chance to respond.


If you're running a small business, the lesson here is clear. Footage of someone walking around a supermarket or helping at a farm doesn't tell you whether they can perform the specific physical demands of their job. Only a medical professional can make that assessment.


Is covert monitoring ever lawful?


It can be. But the bar is high.


Under UK GDPR, you need a lawful basis for collecting personal data through surveillance. Before any monitoring takes place, you should carry out a Data Protection Impact Assessment. ICO guidance states that covert monitoring should only happen in exceptional circumstances where informing the employee would compromise the investigation.


Surveillance also needs to be proportionate and limited in duration. There's a significant difference between targeted monitoring of someone you have documented, specific reasons to suspect and watching an employee because something feels off.


One practical step that strengthens your position is having a workplace policy that makes employees aware covert surveillance could be used in certain situations. If evidence is later challenged, having that policy in place gives you a much stronger footing. As part of our HR consultancy services in Camden, I regularly help businesses put these kinds of policies in place before a situation arises.


Why disability-related absence is especially high risk


The cases above all involved conditions that qualify as disabilities under the Equality Act 2010. Chronic back pain and neuropathy may not be visible, but they still meet the legal definition.


When an employee's absence is connected to a disability, dismissing them on the basis of surveillance footage carries a dual risk. You could face claims for unfair dismissal and disability discrimination.


Disability discrimination awards have no cap. And from January 2027, the cap on unfair dismissal compensation is being removed too. That means there will be no ceiling on what a tribunal can award if it rules against you.


For a small business, even a fraction of the £329,000 awarded in the Pilkington case would be devastating.


A better approach when you suspect absence fraud


If you genuinely believe an employee is not being honest about their fitness to work, there are steps you can take that protect your business without creating additional exposure.


Start with an occupational health referral. An independent medical opinion will tell you whether the employee's reported symptoms are consistent with their condition. That evidence is far more useful than surveillance footage.


Return-to-work meetings are another important tool. Conducted properly, they create a documented record of the employee's own account of their health and progress. A structured absence management process often resolves concerns before surveillance is even considered.


If, after those steps, you still believe fraud is a genuine possibility, take professional HR advice before commissioning any monitoring. And if surveillance does go ahead and evidence is gathered, have a medical professional review what the footage actually shows before you make any decisions based on it.


The sequence matters. Occupational health first, structured absence management second, HR advice third, and only then consider surveillance as a last resort.


Questions worth asking yourself


Before you act on a suspicion about an employee's absence, it's worth reflecting on a few things.


  • Do you have a formal absence management process that creates a proper paper trail?

  • Have you obtained an independent medical opinion on the employee's condition before drawing your own conclusions?

  • Does your workplace have a policy that covers the circumstances in which covert monitoring might be used?

  • If the employee's condition qualifies as a disability, have you considered how the Equality Act applies to your decision-making?


If the answer to any of those is no, you should take advice before going further.


How we can support you


We work with small businesses on absence management, occupational health referrals, and fair investigation processes. If you're dealing with a situation where you suspect an employee isn't being genuine about their absence, I can help you handle it in a way that protects your commercial interests rather than creating a larger problem.


As an outsourced HR consultant in London, I provide pragmatic, confidential support tailored to your specific circumstances.


If you'd like to talk through your situation, please get in touch and we can arrange a discovery call.


Mobile number: 07828690205




 
 
 

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