The use of evidence from detectives hired by employers: some interesting issues
Employers, in the ordinary course of their business, occasionally find themselves in a situation where they suspect that one of their employees could be engaging in fraudulent conduct or activities that breach the duty of contractual good faith, leading them to consider the possibility of hiring a private detective to confirm or dispel these suspicions.
The gathering and use of evidence from private detectives is a particularly sensitive issue, given its direct link to two fundamental rights: (i) the right to personal and family privacy; and (ii) the right of personal portrayal.
Although each case must be analyzed individually, there are some interesting issues that will be common to any investigation and which are extremely important:
- First of all, the employer must be able to specify and justify the preliminary suspicions that led it to monitor the worker, and cannot carry out random, preventative or prospective investigations.
- During the investigation, detectives may record scenes when the worker is on the public highway or in a public establishment, always within the limits established by the law for audio or visual recording equipment. Recordings authorized by the worker but obtained through deception, or the use of a worker tracking system without the worker’s knowledge, will not be valid.
- Evidence from detectives must respect the principle of proportionality at all times, passing the three-fold test of suitability, necessity and balance.
- Lastly, and in what is generally the archetypal scenario for the use of this kind of evidence, employers may use private detectives to confirm whether a worker on sick leave is performing activities which either demonstrate his/her fitness for work or which entail a delay in their recovery.
In short, evidence from detectives is a valid and suitable resource in labor and employment law, although it must be obtained with the utmost caution, having regard at all times to the principle of proportionality since it affects the fundamental rights pertaining to the most private areas of the worker’s life.
Garrigues Labor and Employment Law Department
