Given the rise in availability of covert surveillance equipment it
is perhaps unsurprising that both employers and employees are using
covert surveillance to investigate and prove wrongdoing. However, there
is a real risk that evidence against an employer or employee obtained
in this way will breach human rights and be inadmissible at the
tribunal. Both article 8 of the Human Rights Act 1998 which provides
for the right to respect for their private and family life and article 6 of the Act
which provides for the right to a fair trial are potentially relevant
when considering the admissibility of evidence.
Recent case law suggests that such evidence will be admitted by the
tribunal where the evidence uncovered is considered to be of a very
serious nature and could not have been obtained by less intrusive
means. Employers and employees ought to think carefully about the human
rights implications of their investigations as well as the duty of
trust and confidence implied into every employment contract.