Many employers ask whether or not they can safely use covert surveillance footage as evidence against an employee during the disciplinary process. A recent case has provided useful guidance. Reema Jethwa from our Employment Team explains.

In the case of City and County of Swansea v Gayle, Mr Gale was seen by a colleague playing squash at a local sports centre when he should have been at work. The same thing happened about a month later and so Mr Gayle's employer decided to hire a private investigator who was able to film Mr Gayle coming out of the sports centre on five subsequent occasions when had told his employer he had been working. After completing their investigation and reviewing the footage, the Council dismissed Mr Gayle for claiming pay for time that he had not actually been working but had instead been playing squash. 

Mr Gayle's claim for unfair dismissal was upheld by the Employment Tribunal as they believed that the investigation was unreasonable as it was "too thorough". They strongly disapproved of the covert surveillance when in fact the Council had sufficient evidence from the employee's colleague who saw him at the sports centre. For this reason, the Employment Tribunal concluded that there had been an "unjustified interference" with Mr Gayle's right to a private and family life under Article 8 of the European Convention on Human Rights. The Employment Tribunal went on to say that in addition to this, the dismissal was unfair because of the Council's "inexcusable ignorance" of its obligations under the Data Protection Act 1998. For example, in accordance with the Employment Practices Code, the Council had not completed an impact assessment and had filmed Mr Gayle at a place where he had "a legitimate expectation of privacy". 

The Employment Appeal Tribunal overturned the Employment Tribunal's finding of unfair dismissal as the main criticism of the Council's covert surveillance was irrelevant to the question of the fairness of his dismissal. When considering whether there had been a breach of Mr Gayle's Human Rights, it was found that there had not been any breach of Article 8 as he had been filmed at a public place where there was no reasonable expectation of privacy. They also emphasised that when an employee is being paid by their employer to work, the employer was entitled to know where the employee was and what they were doing during this time. It was noted that when an employee is committing a fraudulent act, they should not have any expectation of privacy. Finally it found that the Council had not been in breach of its obligations under the Data Protection Act 1998 as the Employment Practices Code provides guidance only – employers are not required to act in accordance with it.

What does this mean for employers?

This case is important because it appears to support the fact that such evidence can be used in situations like this. However, employers would be well advised to conduct an impact assessment before embarking on a similar course with employees. One question employers might ask themselves beforehand is 'do I need to obtain evidence in this way or can evidence be obtained in another, perhaps less intrusive, way?'. There are cases where the use of such evidence is perfectly appropriate and permissible but careful consideration must be given, and legal advice taken, beforehand so as to avoid a finding that any subsequent reliance on the evidence is 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.