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.