Guidance from an HR consultant based in Milton Keynes on why covert surveillance of absent employees is riskier than you think, and what to do instead.
Recent tribunal rulings have shifted the ground beneath employers who use private investigators to check up on staff on sick leave.
One employer has been hit with a bill of more than £329,000. Two others faced awards for both unfair dismissal and disability discrimination.
If you run a small business and you've ever thought about getting proof that someone is faking their absence, you need to understand what's changed.
These cases show how quickly a decision made out of frustration can become an expensive legal problem.
Here's what happened and what it means for you.
Three employers who got it wrong
All three of these cases followed a similar path. An employee was off sick. The employer suspected they weren't genuinely unwell. Surveillance was arranged. Footage was gathered. And then the employer moved straight to dismissal without seeking proper medical advice on what the footage actually showed.
Pilkington UK employed a team leader called Alan Jones, who was on sick leave with radiation-induced neuropathy after cancer treatment. The company hired a surveillance firm and captured video of him doing some work on a friend's farm. Rather than asking a medical professional whether that activity was inconsistent with his condition, Pilkington treated the footage as proof of secondary employment and dismissed him for gross misconduct. To make matters worse, the allegation was changed during the process and Jones wasn't given a fair chance to respond. The tribunal ruled the dismissal unfair. The total award exceeded £329,000.
Aliaxis, a plastics manufacturer, took a similar approach with Neil Wilson, a warehouse worker absent with chronic back pain. They hired a private investigator, reviewed his social media, and concluded he was "moving freely." Wilson was called into a meeting and told he could resign, face capability proceedings, or be reported to the police for fraud. The tribunal found Aliaxis was "overly eager" to remove him and ruled the dismissal unfair and discriminatory. Wilson received £30,682.
BMW suspected Mohamed Kerita, a factory worker off with chronic back pain, of exaggerating his symptoms. A security firm filmed him performing ordinary daily activities like walking and bending over his car. BMW dismissed him for gross misconduct, claiming he had fraudulently claimed sick pay. The tribunal found that medical evidence supported Kerita's inability to carry out his physically demanding role. It also noted he wasn't even receiving company sick pay at the time the footage was taken. The dismissal was ruled unfair and discriminatory, with a remedy hearing still pending.
The common thread
In every one of these cases, the employer jumped from footage to dismissal without pausing to get an independent medical opinion.
None of them asked a qualified professional whether the activities captured on camera were actually inconsistent with the employee's diagnosed condition. None of them followed a fair process that gave the employee a genuine opportunity to explain.
That's the pattern. And it's the pattern that led to each employer losing at tribunal.
Surveillance isn't automatically unlawful
I want to be clear about this. Monitoring an employee covertly is not illegal in itself. But the bar is high.
Under UK GDPR, you need a lawful basis for collecting personal data through surveillance. Before any monitoring begins, you should carry out a Data Protection Impact Assessment. ICO guidance is clear that covert monitoring should be reserved for exceptional circumstances, specifically where informing the employee would undermine the investigation.
The monitoring also needs to be proportionate. Having a documented, specific reason to suspect fraud is very different from acting on a gut feeling.
One thing that strengthens your position is having a policy in place. If your staff are aware that covert surveillance could happen in certain circumstances, you're on much firmer ground if the evidence is ever challenged.
Disability makes this even more complicated
Many of the conditions that lead to long-term absence are classified as disabilities under the Equality Act 2010. Chronic back pain, neuropathy, myofascial dysfunction. These conditions qualify even when the person doesn't appear visibly disabled.
If the employee's absence is connected to a disability, surveilling them and then dismissing them based on what you see carries significant legal risk. You could face claims for both unfair dismissal and disability discrimination.
Disability discrimination awards have no cap. And from January 2027, the compensation cap for unfair dismissal is being removed too. That means a tribunal could award whatever figure it considers appropriate, with no ceiling.
For a small business, that kind of exposure could be devastating.
What you should do instead
If you genuinely believe an employee is abusing their sick leave, there's a sensible process to follow before you even consider surveillance.
Start with an occupational health referral. Get an independent medical view on whether the employee's reported symptoms match the clinical picture.
Conduct return-to-work meetings each time they come back. Use a structured absence management process. These steps create a clear paper trail and, in many cases, resolve the issue without any need for monitoring.
If you've done all of that and you still suspect fraud, get HR advice before commissioning any surveillance. As part of our HR consultancy services based in Milton Keynes, I regularly help business owners work through exactly this kind of situation.
And if surveillance does go ahead and evidence is gathered, don't act on it until a medical professional has reviewed the footage and confirmed whether it genuinely contradicts the employee's condition.
Questions worth asking yourself
If you're dealing with an employee whose absence is causing you concern, take a moment to consider these points:
➡️Have you referred the employee to occupational health, or are you relying on your own interpretation of how unwell they are?
➡️Do you have a written absence management policy, and have you followed it step by step?
➡️If the employee has a long-term health condition, have you considered whether it qualifies as a disability under the Equality Act?
➡️Would you be comfortable explaining your actions to a tribunal judge if the employee challenged their dismissal?
If you're unsure about any of these, it's worth getting advice before you take the next step.
I work with small businesses on absence management, occupational health referrals, and making sure investigation processes are fair and legally sound.
If you suspect someone is taking advantage of their sick leave, I can help you deal with it in a way that protects your business rather than creating a bigger problem.
As an outsourced HR consultant based in Milton Keynes, I provide straight-forward, confidential advice to businesses all over the UK, so you can make the right decision with confidence.
Get in touch if you'd like to talk it through. A quick conversation now could save you a very costly mistake later. 📱 0781 3084152 or email 📧 daxa@hrresultsltd.co.uk Taking your HR from 'to do' to 'done'.
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