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Covert surveillance of employee off sick deemed to constitute a ‘detriment’ for victimisation claim

An employee brought Tribunal proceedings against her employer for race discrimination and then had a period of sickness absence. Her employer used covert surveillance on her whilst she was absent because they thought she might be exaggerating her symptoms. In this case, the Tribunal held that the company's actions were entirely disproportionate as a first response to their concerns about the employee's stated condition.

Ms Spragg brought a case against Richemont (who own the exclusive brands Cartier, Montblanc, Jaeger and Chloe – to name but a few) in relation to race discrimination. In a 66 page judgment, the Tribunal upheld her claims on the evidence of that Ms Spragg had been subject to racially motivated comments and behaviours and was overlooked for a promotion on a number of occasions. It was found that Richemont did not follow or have in place correct procedures and that their staff had not received equality and diversity training.

However, this update is concerned with the fact that the Tribunal held that Richemont's use of covert surveillance on Ms Spragg during a period of sickness absence constituted a detriment for the purposes of Ms Spragg's victimisation claim (which was successful). Richemont actually admitted that their actions potentially constituted a detriment during the hearing.

FACTS (relating to the use of covert surveillance):

Ms Spragg was off work with a bad back, having submitted a claim to the Tribunal in relation to race discrimination. During the May bank holiday, a colleague of Ms Spragg's (Mr Boltman) saw her in the standing area of a music festival. Mr Boltman was surprised to see her, knowing she was off work with a  bad back, and notified HR.

They day before Mr Boltman notified HR, Ms Spragg had told Richemont that: "she could not sit for more than five minutes, could not walk for very long and could not go shopping or carry shopping bags. She said her whole lifestyle had changed. She said she was unable to play tennis, do regular walking, swimming or dancing and was unable to wear business clothes or shoes. She said she could not wear jeans as it made the pain excruciating".

HR decided to instruct a covert surveillance company immediately as they considered that Ms Spragg was not being truthful about the extent of her incapacity. The surveillance company were very thorough – in a 76 page report, the surveillance company detail how they followed her to a wedding, watched her when she was shopping, in her home and garden and having breakfast with her husband. Ms Spragg said she knew she was being watched, and the surveillance company agreed that it is quite common for the target of the surveillance to become aware of their presence. Ms Spragg said she felt very unnerved, upset and intimidated.

The Tribunal were very scathing of Richemont, who not only failed to provide evidence regarding their rationale for instructing the surveillance company or the instructions which were provided, but the HR managers themselves admitted that a more appropriate first step would have been to seek clarification from a medical specialist. In coming to their conclusion that the "disproportionate level of intrusion into the claimant’s personal and family life" was "very much a detriment", the Tribunal stated:

"…there should have been some investigation with the claimant in relation to what Mr Boltman had observed at the festival. In addition it would have been reasonable and proportionate to have commissioned a further medical investigation to include a clinical examination by a suitably qualified medical expert. The respondent’s [occupational health] professional is a GP. An expert could be asked appropriate questions including as to what had been observed by Mr Boltman at the festival and whether this was consistent with the injury and symptoms described, in conjunction with a clinical examination".

This case serves as a stark reminder of the need to take proportionate steps when investigating sickness absence, irrespective of the circumstances surrounding any suspicions that you might have. In this case, it would appear that the relevant HR managers let the ongoing issues regarding the race discrimination claim cloud their combined 37 years of judgement and expertise from working in HR. The two managers in question had never instructed covert surveillance before, and it seems it was a knee-jerk reaction to what could have been very simply (and more sensitively) dealt with. It is of note that the Tribunal were also very scathing of how Richemont treated what was very sensitive personal data relating to Ms Spragg and her family. They found that they did not hold this in high enough regard and that the strict approach to data protection which was taken in relation to CCTV footage of other staff members was not extended to the covert surveillance of Ms Spragg.

Our employment law team can provide you with expert training on managing sickness absence and on equality and diversity, which can be delivered in house for your managers. For more information, please contact Claire or Rebecca

Case: Ms C Spragg v Richemont UK Ltd: 2206044/2017

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