If an employee abuses their sick leave, understandably it’s a stressful and frustrating time for you as an employer.
It can be tempting to get proof they’re “faking it”.
But spying on your workers is a risky game and could get you into more trouble than it’s worth.
Three recent tribunal cases prove that covert surveillance not done properly can end in unfair dismissal and disability discrimination claims. In one of those cases, the employer is facing a bill of over £329,000.
Let’s take a look at those recent cases, plus what you can and can’t do as a business owner in these kinds of situations.
What happened in each case
The Pilkington case
Alan Jones worked as a team leader at glass manufacturing company, Pilkington UK. He was on sick leave after being diagnosed with radiation-induced neuropathy, following cancer treatment.
Pilkington UK hired a surveillance company and they videoed him helping out at a friend’s farm.
His employer treated the footage as proof of secondary employment and dismissed him for gross misconduct, without getting any medical input on whether what the footage showed was actually inconsistent with his condition.
Pilkington UK also changed the allegation during the process, from suspected secondary employment to physical activity inconsistent with sick leave, without giving him a proper chance to respond.
A tribunal found the dismissal unfair, and the award was more than £329k.
The Aliaxis case
Next, Neil Wilson, was recently awarded £30,682 for unfair and discriminatory dismissal.
Wilson was a warehouse worker who was off work with chronic back pain. Suspicious as to whether he really was unfit to work, his employer, plastic piping manufacturer Aliaxis, hired a private investigator to follow him.
Aliaxis also looked at Wilson’s social media and, together with the investigator’s footage, determined that Wilson was “moving freely”.
His employer cancelled his salary payments and called Wilson into a meeting, where he was told he could resign, face capability proceedings or be reported to police for fraud.
Wilson challenged this at tribunal, which found that the employer was “overly eager” to let him go and that the dismissal was both unfair and discriminatory.
Wilson was awarded £30,682.
The BMW case
Lastly, Mohamed Kerita, a BMW factory worker, went off sick with chronic back pain and was signed off by medical professionals.
However, BMW suspected that he was exaggerating his condition and hired a security firm to surveil him. They filmed him carrying out everyday activities, including walking around and bending over his car.
BMW concluded that he had fraudulently claimed sick pay and dismissed him for gross misconduct.
Kerita took BMW to tribunal, which found that medical evidence supported his inability to do his physically demanding job. It also found that the surveillance did not prove otherwise and that he was not even receiving company sick pay when the footage was taken.
This led the tribunal to rule that his dismissal was unfair and discriminatory. A remedy hearing is still to follow.
The pattern across all three is the same. Employers who gathered surveillance footage and then moved to dismissal without proper medical input, a fair process or any real consideration of what the employee’s disability meant for how the evidence should be read.
What you can do as an employer
Covert monitoring of an employee isn’t automatically unlawful. But it has to meet a high bar.
Under UK GDPR, you need a lawful basis for collecting the data.
What does that mean?
You’ll need to carry out a Data Protection Impact Assessment before any surveillance takes place. ICO guidance says that covert monitoring should only be used in exceptional circumstances, where telling the employee about it would undermine the investigation.
It also has to be proportionate and time-limited. Targeted surveillance of someone you have specific, documented grounds to suspect is a different thing from watching an employee because you’ve got a feeling.
Your employees should also generally be aware that monitoring could happen. Having a policy in place that tells staff covert surveillance is possible in certain circumstances puts you in a far stronger position if the evidence is ever challenged.
Where you need to be careful
Cases surrounding disability and long-term absence are where employers need to tread very carefully.
Chronic back pain, neuropathy, myofascial dysfunction: conditions like these are all disabilities under the Equality Act 2010, even if they don’t look like it from the outside.
If an employee is disabled and their absence is connected to that disability, surveilling them and then dismissing them for their absence carries a lot of risk.
If the employee took you to tribunal, you could be found liable for both unfair dismissal and disability discrimination.
Disability discrimination awards are uncapped. And, from January 2027, the compensation cap for unfair dismissal is also being lifted. This means that there would be no ceiling for the award, if the tribunal ruled in the employee’s favour.
What a sensible surveillance process looks like
If you genuinely suspect absence fraud, the first step is an occupational health referral.
Get an independent medical view on the employee’s condition and whether their reported symptoms are consistent with the medical picture.
Use return-to-work meetings and a structured absence management process. These create a paper trail and often resolve the concern without surveillance ever being needed.
If you still believe fraud is a genuine possibility after those steps, take HR advice before you commission any monitoring.
If surveillance happens and evidence is gathered, take medical advice on what it actually shows before acting on it.
How we can help
We advise small businesses on absence management, occupational health referrals and fair investigation processes.
If you suspect an employee is abusing sick leave, we can help you to handle it in a way that protects your business rather than creating a bigger problem.
If you want to talk it through confidentially, get in touch.