Human Resources frequently asked Questions
“What law legally states we can monitor our employees outside the workplace?”
This is a question we have heard many times over the years, and the answer is always the same
“There isn’t one, as anyone can be monitored in a public place”
In the past 12 months NTF Investigations have seen a x6 fold rise in Human Resource departments contacting us asking about our services to either negate claims against them which are believed to be fraudulent or investigate employee theft/false sickness. Whilst every single person on the planet has in some way seen a change in their circumstances, be it personally or financially, COVID seems to have created a mindset in certain employees which is now threatening to take the financial impact businesses have already suffered to a whole new level.
Understanding how you, as a HR representative for your company, can move through this process in a way which doesn’t impede the claimant’s rights, whilst also ensuring that their claim is indeed genuine, is not as complicated as most people think. Your company, as a responsible employer, should investigate with honesty and integrity to protect itself and, with a little time and effort, you can ensure that the end result, be it a genuine case or a fraudulent claim, will not come back to bite you, nor cost you the earth to investigate.
The consequences of lying about injuries or losses are undoubtedly detrimental to any claimant who decides to pursue the path of deceit for financial gain. The ultimate purpose of a personal injury claim should be to restore the claimant’s position to their pre-accident position. A personal injury claim must not be used to make money for injuries and losses that are not genuine.
Fundamental dishonesty does not need to be expressly alleged by the defendant in writing and the allegation can be advanced at any stage of a case. Many HR departments know instantly where a case is heading, but are hesitant to ‘press ahead’ from an early stage to negate any claim on its arrival.
Some people who are pursuing a personal injury claim may fail to appreciate that a Court can order costs orders against them for making a dishonest claim. What may seem like a trivial attempt to exaggerate losses and/or injuries can have a spellbinding effect in relation to the outcome of a case.
The employer should be aware of all this information and so should the claimant.
Adherance to the Law
Before you even consider an investigation you need to be truthful to yourself. ‘Have I adhered to the law’? Your employee will be directed by their representative. Sometimes the representatives will direct you to guidance which, on the face of it is daunting. Remember, it’s also there to protect you as an employer, so when reading up make sure you read all of it. There is a minefield of information – don’t be afraid to question what the representative is referring to, how they think it to be appropriate in their client’s case and take the time to understand their position.
The term ‘fundamental dishonesty’ is referred to in both Civil Procedure Rules (CPR) 44.16(1) and Criminal Justice and Courts Act (CJCA) 2015, Section 57. CJCA 2015, s.57 allows for an entire personal injury claim to be dismissed, including any genuine elements, on the basis that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
Harassment, Alarm or Distress
“The employee’s representative has been in touch and I’m worried that they will claim harassment, alarm or distress if we look into the employee outside of the workplace”
The very nature of surveillance means monitoring activities from an unidentified position. Therefore the employee cannot be harassed, alarmed or distressed by something they are not aware of.
You may need to be able to explain why it would not be prudent to inform the employee of your intention to monitor them outside of work to ascertain if their injuries are as described. Obviously, doing so would change their natural behaviour, physical movement and pattern of life, defeating the purpose.
Common misconceptions surrounding pictures and footage taken in a public place are dispelled below:
1. You have the right to photograph any subject as long as you are in a public place and it is not done for the purposes of terrorism.
2. You have the right to keep any photographs you take unless confiscated via a warrant.
3. You do not need permission from your subject to take their photograph.
4. You own the copyright to any photographs you take, not the subject.
5. You cannot be removed or restricted from taking photographs from a public place.
6. Your photographs must not be forcibly viewed by a police officer unless they have good reason to do so.
7. Human Rights Act – most notable Articles 5, 6, 8, 10 & 14. All are understood and never infringed.
The general rule of thumb is – if you can see something via the naked eye from a public place, without any additional focus or manipulation (spectacles and contact lenses apart), then you can record it by whatever means available.
Building the Investigation
Any investigator worth their salt will listen to you before they talk to you about your investigation. This will provide the bedrock of your investigation; the initial information will allow us to assess if what you believe to be occurring is worth you spending company money on and furthering your query. You have a responsibility to your company to get the best for your company; we have a moral and professional responsibility to you to ensure you are spending your money correctly with the most proportionate chance of a positive outcome.
How do we start the Investigation?
A thorough Pre-Assignment Impact Assessment will put down in writing detailing why we believe that an investigation/surveillance of the employee is believed to be the only way forward to assess their claim’s credibility and your/our rationale for this.
An employee has claimed they have damaged their back performing a task at work. You have went through the standard HR procedure with the employee over several weeks/months and there seems to be no end in sight. They have attended occupational health meetings and are claiming to be in a lot of pain/using aids to assist in their movement, restricting their ability to work. Their representative is now involved. The employee is being vague/non responsive about questions asked in relation to the injury and its occurrence. You’ve tried all means possible to assist them and get them back into a work related role – they are now point blank refusing.
You have a suspicion their ‘injury’ is not as is being made out. Numerous things may be pointing towards this – information indicates this, they have previous character for this, you’re aware they have financial difficulties – are they making a claim to enable them to obtain a financial gain from your company?
How do you obtain the evidence to support or negate this theory?
1. NTF Investigations Group are contacted.
2. We agree on a proportionate response to initially monitor the employee. Footage is obtained, reports are written, statements are produced. Exhibits and evidence are submitted.
3. You utilise this information in the HR process to enable the employee to return to work or a resolution is arrived at mutually.
4. Should the case involve court proceedings then every part of the process is documented and evidenced. Any questions regarding rationale and proportionality can be answered and judgement arrived at fairly based on sound, factual evidence, legally obtained and presented.
The above ensures that you act within the law to allow us to monitor your employee’s outside the workplace.