Guidance from an HR consultancy in Edinburgh on what to do when you suspect an employee is faking sick leave, and why covert surveillance can create far bigger problems than the ones you’re trying to solve.
You’ve got someone off sick and something doesn’t feel right.
Maybe a colleague mentioned seeing them out and about. Maybe their social media tells a different story to the one they gave you.
Your instinct is to find proof. But acting on that instinct without the right process could cost you over £329,000.
Three recent tribunal cases show exactly how quickly things can go wrong when employers use surveillance and skip the proper steps.
Here’s what you need to know.
Why sick leave surveillance is so risky for small businesses
When you run a smaller business, every absence hits harder. You’re covering shifts, picking up extra work, and paying someone who isn’t there. If you suspect they’re not genuinely unwell, it’s incredibly frustrating.
However, the financial risk of getting your response wrong is enormous.
Recent tribunal outcomes have shown awards of £329,000 and £30,682 for unfair dismissal and disability discrimination. A further case is still awaiting its remedy hearing, so the final figure isn’t yet known.
Conditions like chronic back pain, neuropathy, and myofascial dysfunction all qualify as disabilities under the Equality Act 2010, even when the person looks perfectly fine from the outside. If an employee’s absence is linked to a disability and you dismiss them based on surveillance footage, you could face claims on two fronts: unfair dismissal and disability discrimination.
Disability discrimination awards have no cap. Furthermore, from January 2027, the compensation cap for unfair dismissal is being removed too. That means there would be no upper limit on what a tribunal could award.
What went wrong across three recent cases
All three of these cases followed a similar pattern. The employer suspected fraud, commissioned surveillance, and then dismissed the employee without seeking proper medical advice about what the footage actually showed.
A glass manufacturer’s £329,000 bill
A team leader at Pilkington UK was on sick leave following cancer treatment. He’d been diagnosed with radiation-induced neuropathy. His employer hired a surveillance company, who filmed him helping out on a friend’s farm.
Pilkington treated the footage as evidence of secondary employment and dismissed him for gross misconduct. They didn’t get any medical input on whether his activity was actually inconsistent with his condition. They also shifted the allegation part-way through the process, from secondary employment to physical activity inconsistent with sick leave, without giving him a fair chance to respond.
The tribunal ruled the dismissal unfair. The award came to more than £329,000.
A warehouse worker pressured to resign
Neil Wilson worked at Aliaxis, a plastic piping manufacturer, and was off with chronic back pain. His employer hired a private investigator and reviewed his social media. Based on footage showing him ‘moving freely,’ they cancelled his salary and called him to a meeting where he was told he could resign, face capability proceedings, or be reported to the police for fraud.
The tribunal found Aliaxis was ‘overly eager’ to let him go. The dismissal was ruled both unfair and discriminatory, with an award of £30,682.
A factory worker filmed doing everyday activities
Mohamed Kerita, a BMW factory worker, was signed off with chronic back pain. BMW hired a security firm who filmed him walking around and bending over his car. BMW concluded he’d fraudulently claimed sick pay and dismissed him.
The tribunal found that medical evidence supported his inability to do his physically demanding role. The surveillance didn’t prove otherwise. 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 to come.
The common thread
In every case, the employer jumped from surveillance footage straight to dismissal. None of them sought medical input on what the footage actually demonstrated. None of them considered whether the employee’s condition, as a disability, affected how the evidence should be interpreted.
That’s the mistake. Footage of someone walking to the shops or bending over a car doesn’t prove they can do a physically demanding job. Only a medical professional can make that assessment.
When covert surveillance is lawful
Covert monitoring isn’t automatically unlawful. However, it has to meet a high bar under UK GDPR.
You need a lawful basis for collecting the data. Before any surveillance takes place, you’ll need to carry out a Data Protection Impact Assessment. ICO guidance says covert monitoring should only happen in exceptional circumstances, specifically where telling the employee would undermine the investigation.
The surveillance also needs to be proportionate and time-limited. Having documented, specific grounds for suspicion 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 already aware that covert surveillance could happen in certain circumstances, you’re in a much stronger position if the evidence is ever challenged at tribunal.
A better approach when you suspect absence fraud
If you genuinely believe an employee is abusing sick leave, there are steps you should take before you even think about surveillance. Through our HR consultancy services in Edinburgh, I regularly help business owners work through exactly this kind of situation, and the process below is what I’d recommend.
**Start with an occupational health referral.** Get an independent medical view on the employee’s condition and whether their reported symptoms match the clinical picture.
**Use return-to-work meetings.** These conversations, when done consistently, create a paper trail. They also give you a chance to raise any concerns directly with the employee.
**Follow a structured absence management process.** Often, a well-managed process resolves the concern without surveillance ever being needed.
**If you still suspect fraud after those steps, get HR advice before commissioning any monitoring.** Furthermore, if surveillance does go ahead and evidence is gathered, get medical advice on what it actually shows before you act on it.
Skipping any of these steps is where employers get into trouble. The tribunal cases above are proof of that.
Questions worth asking yourself
If you’re dealing with a tricky absence situation right now, it might help to pause and consider a few things:
– Have you referred the employee to occupational health, or are you relying on your own interpretation of their condition?
– Do you have a clear absence management policy that’s being followed consistently?
– If you were to commission surveillance, do you have documented, specific reasons for doing so?
– Would your current policies stand up to scrutiny if the employee brought a tribunal claim?
Let’s have a conversation
Dealing with suspected sick leave abuse is stressful. You want to do the right thing for your business, but you also need to protect yourself from a costly mistake.
As an outsourced HR consultant in Edinburgh, I work with small business owners on absence management, occupational health referrals, and fair investigation processes.
If you’re unsure how to handle a situation like this, I’d love to talk it through with you confidentially.
Get in touch at letstalk@albanyhr.com or call 0131 364 4186 and we can look at what’s going on and figure out the best next step for your business.
