An employer’s right to surveillance – can employers play detective when they suspect their employee has pulled a sickie?

In our last issue of Vital., we discussed different types of employee absenteeism and how employers can manage this. A recent determination in the Employment Relations Authority serves as a reminder of what employers’ obligations are when they have evidence to suggest an employee may have called in sick without grounds, potentially warranting disciplinary action.

Frew v Oakley’s Windows & Doors Limited [2025] NZERA 338 primarily concerned an unlawful variation of employment, coupled with a separate issue that involved the employer taking photos of the employee at community events whilst on sick leave. The employer took the photos out of concern that the employee was abusing his authorised sick leave and was not actually unwell.

Notably, the employer took the photos between April and July 2024. However, they did not disclose them to the employee until February 2025 when the parties were due to attend mediation on a separate employment relationship issue. The employer invited the employee to respond to the photos disclosed at that time, however rather than seeking to discuss their concerns, the employer said the photos would “help progress talks in mediation effectively“. The employer’s position appeared to be that the photos would be useful in discussions of the employee’s credibility.

The employee raised a grievance for unjustified disadvantage once he became aware of the photographs, as well as that the employer had discussed his sick leave with a community member. The employee’s view was that the employer had unreasonably conducted intrusive surveillance of him in a manner that caused him distress and breached its privacy obligations to him. The employer’s argument was that it was genuinely concerned that the employee’s leave of absence on medical grounds was not genuine.

The Authority’s main concern was the employer’s delay in disclosing the photos to the employee. It found this demonstrated a failure to manage the employee’s absence or to engage constructively with him, which caused the employee to feel distressed and humiliated. Ultimately, the employee’s disadvantage grievance was successful.

When might employee surveillance be lawful?

In some cases, calling in sick when not unwell may amount to serious misconduct and warrant disciplinary action, including dismissal. However, what the Authority in Frew did not consider in depth was whether an employer conducting surveillance of an employee on sick leave is unlawful in and of itself, even if the employer follows a fair and reasonable process in disclosing the photos to the employee and inviting their response, before commencing any disciplinary action.

While the case law on this point is limited, the position appears to be that conducting surveillance on an employee can be lawful, provided that such surveillance is fair and reasonable in the first instance, and is followed by a fair and reasonable process if the employer seeks to take disciplinary action.

Griffith v Sunbeam Corporation Ltd [2006] NZEmpC WC 13/06, involved an employer who paid a visit to its employee’s personal building site on the suspicion he had called in sick to continue building his new house.

On arrival, the employer observed the employee working onsite, wearing work boots and a tool belt. The employee saw his employer had arrived and approached him, at which stage the employer stated his understanding that the employee was sick. The employee responded that he had visited the doctor that morning and received an injection that had left him feeling much better. However, when his employer asked for proof of his doctor’s appointment, he was unable to provide it.

A disciplinary process ensued and the employee was ultimately dismissed. The Employment Court found the employer’s dismissal was justifiable, noting the employer had conducted a full and fair investigation, followed by a fair and reasonable process. No issues regarding breach of the employee’s privacy by arriving at the employee’s personal building site were raised, seemingly suggesting that searching for and approaching an employee in person whilst on sick leave, may be a lawful and reasonable exercise of surveillance.

Excell Corporation Ltd v Stephens NZEmpC [2003] ARC 19/03 also involved a dismissal, however it was found to be unjustified, owing in part to the employee’s acts of surveillance. In that case, the employee had booked a trip to visit his daughter using annual leave. Prior to his trip, the employee was suffering from workplace stress due to a strained relationship with his manager, so he would extend his trip by one day, and call in sick that morning.

Prior to the employee leaving for his trip, the employer discovered he had changed his flight home when his updated itinerary appeared in the workplace fax machine. The employer suspected that employee intended to take unauthorised sick leave the day he arrived home, however did not raise this suspicion with the employee prior to his departure. Rather, the employer waited for the employee at the airport and photographed him getting into a taxi outside. A disciplinary process followed, and the employee was dismissed for abuse of sick leave.

The Court found that while abusing sick leave would, on the face of it, be sufficient reason to dismiss in accordance with the employer’s policy, the investigation leading to the conclusion that the employee had, in fact, abused his sick leave was unjustified.

One reason for this was the fact the employer had sat and waited for Mr Stephens outside of the airport to confirm its suspicions, when it had the opportunity to confront the employee at an earlier stage. If the employer had done so, he would have had the opportunity to explain this was due to stress, and to provide medical evidence.

While the case law suggests that surveillance of employees may be lawful, employers must tread carefully. Failing to raise a suspicion of intention to take unauthorised sick leave will likely render the surveillance in and of itself unlawful, and thus incapable of forming the basis for a fair and reasonable disciplinary process. Employers should also be mindful of its obligation to disclose any evidence of unauthorised sick leave, gathered by the employer themselves or otherwise, if it intends to rely on the evidence for any immediate disciplinary action or otherwise.

Want to know more?

If you have any questions about the issues discussed in this article, please contact our specialist Employment Team.

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