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.

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