Lie Detector Tests in the Workplace
G4S has recently been in the news for a number of reasons. Most recently, for allegedly charging for tags which were not actually fitted to offenders and possibly not so well publicised, for being in the running to provide a contract for lie detector testing. Having carried out two successful trials, there are plans to introduce compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.
This led to the thought of whether lie detector tests would constitute admissible evidence in employment tribunals. The legislation in place which would permit the lie detector tests being carried out on sex offenders would not extend to employment tribunals. Therefore, this area currently has no legislation which could be relied upon to justify this.
An employer should always follow the ACAS Code of Practice when considering dismissing an employee. It needs to be able to show that it conducted a reasonable investigation and that it was reasonable for it to come to the conclusion it did based on that investigation. Therefore, the employer should understand that it does not have to prove beyond reasonable doubt that an offence was committed. As the burden of proof is not as strict in employment law, would the use of a lie detector be necessary?
An Employer may however want to ensure it does all they can to make an investigation as fair as possible. If the evidence says one thing but the employee is adamant they are innocent, the employer may feel it needs or wants a more certain conclusion, especially if the decision could end the employee’s career. In such cases, the employer could discuss the lie detector test with the employee. If they consent, the employer should not take the results as a given. There are concerns over the reliability and validity of polygraph tests and so this should not be the main focus of the investigation. It is therefore questionable whether such a test should be used in the first place; if you should not be relying on it, is there a need for it/does it serve a purpose? If an employee refuses the test, the employer should not take this to mean the employee is guilty; they may just have concerns over the accuracy of the test.
The law in the USA on polygraph testing in employment law is governed by the Employee Polygraph Protection Act. Subject to restrictions, the Act permits polygraph tests to be administered to certain job applicants of security service firms and of pharmaceutical manufacturers, distributors, and dispensers. It also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (e.g. theft) that resulted in specific economic loss or injury to the employer. However, these are exceptions to the general rule that they should not be used and where they are allowed, they are subject to strict standards for the conduct of the test.
Consequently, by permitting polygraph tests in certain circumstances in the UK, this could eventually lead to polygraph tests in the workplace. However, if this did occur, it may take some time before it was introduced and it is most likely to be under the same strict conditions as applied in the USA. Therefore, until this time comes, employers need to ask whether such tests are necessary and if not, what they hope to achieve from the test. Employers should also be mindful that such evidence may not be permissible at tribunal in any event.
*originally posted in July 2013