Covert surveillence and race discrimination

Napthens - December 20th 2018

The London Central Employment Tribunal (ET) has recently heard a case in which an employee, Ms Spragg, alleged that her employer, Richemont, had spied on her and denied her the opportunity to progress her career on the basis of her skin colour.

Richemont instructed a surveillance agency to follow and monitor Ms Spragg whilst she was off on sick leave with a bad back. The company began to suspect that Ms Spragg was not being truthful about her condition after she was spotted at a music festival during a period of sick leave. As a result of this, the agency was instructed to follow Ms Spragg for several days. During this time, the surveillance showed that Ms Spragg had attended a wedding, had gone shopping and had travelled on a bus. As a consequence of the surveillance, images were obtained of her house and garden. Ms Spragg became aware of the surveillance and brought her claim in the ET.

In its finding the ET found that the surveillance had been unnerving, intimidating and upsetting for Ms Spragg. The judge also noted that a more reasonable approach would have been to seek advice from a health care professional in order to ascertain whether Ms Spragg attending a music festival was consistent with her back injury.

Further to this Ms Spragg had unsuccessfully applied for a promotion as a financial controller on three occasions; each time the same people were responsible for making the recruitment decisions. As a result of this, the fact that there were no interview records, no equality and diversity training had been carried out and there being no black employees at senior level or within their HR team, the ET found that the Company had a preference for white Europeans within the financial controller positions and Ms Spragg was subsequently directly discriminated against due to her ethnicity.

Finally, Ms Spragg had complained to HR about various events which she found to be discriminatory, such as staff allegedly refusing to enter a lift with her and on occasions laughing at her. When she raised complaints she was told to stop causing her colleagues distress and advised that she should look for another job.

Best practice where you have doubts as to the legitimacy of staff who are on sick leave, due to injury, would be to seek advice from a health care professional and explore what level of activity would be consistent with their reported injury. Secondly, employers should be wary of covertly spying on their staff, especially given that by doing so you would run the risk of breaching the individuals’ right to a private life and the duty of trust and confidence.

Employers should also ensure that full records are kept after conducting interviews and that all staff who are involved in the recruitment process are trained in dealing with the recruitment process. In addition, you should ensure that they receive sufficient equality and diversity training. It is important to note that the lack of evidence and any equality and diversity training can be enough to place the burden of proof on the employer to show that their actions were not discriminatory.

Lastly, it should be remembered that a grievance doesn’t necessarily have to be raised in a formal manner. In such a scenario it is vital that all complaints are investigated and records of the investigation and any outcomes are kept.

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