Using evidence gained through employee monitoring in a disciplinary

Apr 24, 2017 | Good Management

If you have an employee who is the subject of a disciplinary investigation, the clearer and more undisputable the evidence is against them the more robust the decision to impose a warning or other sanction will be. For this reason evidence gained through employee monitoring is invaluable – it is frequently much more subjective and far less easy to challenge than- he said she said’ witness statements.

However that doesn’t mean it’s all plain sailing when using this type of evidence for disciplinary purposes, and there have certainly been instances where it has been ruled by a tribunal that use of such evidence was unfair.

So how can you make sure that when conducting a disciplinary process, any evidence gained through monitoring is admissible and fairly used?

Restricting access and use of information

Don’t automatically access or use information you may hold about a worker in the course of a disciplinary investigation if doing so would not be compatible with the purpose you obtained the information for. Managers carrying out investigations into disciplinary matters should not be given unfettered access to emails, CCTV footage etc.

Instead you need a system whereby if a manager conducting an investigation feels they need to look at some information, he/she needs to be able to justify such access as being both necessary and proportionate to the investigation being carried out.

Justifying covert evidence

Remember that if the evidence has been gained through covert surveillance of some kind you need to have clearly been able to justify the covert surveillance and to have limited it as far as possible in a targeted way.

Be clear about expected behaviour

Just because you have email evidence that a worker (for example) forwarded an email you feel was offensive to someone doesn’t mean you are justified in taking disciplinary action for it. There are two key principles you need to follow for a formal warning or dismissal to be considered fair in those circumstances.

Employees need to have been advised that emails are being monitored, and also need to have been clearly told (usually through a policy) that such behaviour is considered unacceptable and may be a disciplinary offence.

Be clear about how evidence will be used

If you may want/need to rely on CCTV evidence or other monitoring such as vehicle tracking in disciplinary proceedings it is advisable to be clear upfront that this may be the case. You must notify employees of monitoring that is taking place, but you should also specifically state that evidence obtained through monitoring may be used in a disciplinary context.

Consider confidentiality

If you are relying on evidence gathered through employee monitoring in a disciplinary context you need to consider who will see it and whether there are confidentiality issues. Emails may involve references to other individuals, or be to/from someone with a reasonable expectation of privacy/confidentiality. CCTV may contain images of other employees or even members of the public.

Obscuring the identities of unrelated individuals should be attempted where possible, and the list of who views evidence as part of the disciplinary proceedings should be limited to those strictly required to do so. The obligations on those involved to keep information disclosed as part of the disciplinary process confidential should be brought to their attention and recorded as part of the minutes/in a separate confidentiality undertaking.

If you’d like further advice on using evidence gained through employee monitoring in a disciplinary, do get in touch.