If he suspects an employee of cheating on salary insurance, can an employer hire a private detective to conduct shadowing? What are the limits of the worker’s right to privacy? Some explanations.
Employee fraud costs companies 5% of their revenue, according to the 2018 report from the Association of Certified Fraud Examiners. The use of a private investigator is one possible way to deal with this problem.
Although the courts have ruled that this approach violates the individual right to privacy, they have determined that this right is not absolute.
Here are the circumstances and conditions that justify surveillance by an investigator.
Is there a rumour that an employee is using the truck and tools supplied by the company during his days off? A rumour like this is not sufficient to justify the use of shadowing.
It would be different if some colleagues were to say that they themselves saw him at the wheel of the company truck on weekends. The same applies if a worker on sick leave for lumbago posts photos on social media of himself snowboarding or if the symptoms he describes during a medical exam are contradictory. It then enters the area of reasonable grounds to suspect fraud.
A necessary and proportionate approach
Shadowing must also be a solution of last resort. “The employer must first have explored other means to obtain the information, such as viewing videos from the company’s security cameras or having interviewed the employee about his behaviour,” says Claude Paul-Hus, director general of the Office of Private Security (OPS), the Quebec Public Protection Agency for Private Security.
Shadowing should also be reserved for cases where the alleged offence is serious. This is what the director general of the OPS calls the proportionality test.
Only accredited investigators
In Quebec, the profession of investigative officer – legal title of the private detective – is a profession governed by the Private Security Act. For the investigation to be conducted under standard practice, it is better to retain the services of one of the 1,800 holders of an investigative officer’s license in the province.
This will ensure that you are dealing with a professional who is bound to comply with the profession’s rules – the obligation to show respect and adhere to reasonable means of investigation as well as the prohibition of harassing an individual, among others.
“The scope of the private investigator’s action is not black and white,” summarizes Claude Paul-Hus. “Even in public places there is an expectation of a right to privacy. As an employer, it is therefore necessary to ensure that the investigation process is justifiable, and to entrust it to a professional who will carry it out diligently.”