A recent case in the Employment Appeal Tribunal considered the
controversial issue of whether an employer's use of covert
surveillance as evidence of an employee's misconduct affected
the fairness of his subsequent dismissal.
In this case Mr G was employed by Swansea City Council. On several
occasions he was seen by a colleague playing squash at a local
sports centre between 4:30pm and 5:30pm, this being a time when he
should have been a work. After playing squash he subsequently
"clocked off" and regularly contacted his employer and
left messages informing them that he was still as work. Having now
become suspicious, the Council engaged a private investigator who
covertly filmed Mr G outside the sports centre on 5 subsequent
occasions during working hours.
The Council subsequently dismissed Mr G and thereafter he brought a
number of claims, including unfair dismissal. At first instance,
the Employment Tribunal upheld his claim for unfair dismissal (but
awarded no compensation on the basis of 100% contributory fault) on
the grounds that the Council's investigation was unreasonable
because it was "too thorough". In particular, the
Employment Tribunal was critical of the Council's use of covert
surveillance when it already had sufficient reliable evidence of Mr
G's misconduct.
However, after appealing the decision of the Employment Tribunal
the Council was successful in having the Employment Tribunal's
decision overturned. The Employment Appeal Tribunal found that the
original Tribunal had been influenced by its distaste for the
employer's methods in wrongly concluding that the filming of Mr
G had breached his human rights, specifically his right to respect
for private and family life and their obligations under the Data
Protection Act. The Employment Appeal Tribunal confirmed that an
employee has no right to privacy when defrauding his employer. The
Employment Appeal Tribunal also found that the Council were not in
breach of any statutory obligations under the Data Protection Act
in filming Mr G in a public place.
In summary, it appears that the Employment Appeal Tribunal's
decision in this case was heavily influenced by the fraudulent
nature of Mr G's conduct and the fact that the covert
surveillance was of the employee in a public place, where he had no
reasonable prospect of privacy. Nonetheless, employers would be
remiss to conclude that this decision means that covert
surveillance as part of a disciplinary investigation will be
proportionate or reasonable or that they should consider doing it
on a routine basis. It remains the case that it will be rare for
covert monitoring of workers to be justified and therefore it
should only be used in exceptional circumstances and most certainly
not in areas in which employees would generally and reasonably
expect to be private.
Whenever investigating any allegation of misconduct by an employee
it is of paramount importance that an employer seeks expert legal
advice as to the process by which they should adhere. Wherever
possible, employers should avoid acting in a heavy handed or
disproportionate way, as this could ultimately result in what would
otherwise be a fair dismissal being held to be unfair.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.