Back in June 2013 we reported on the case of City and County of Swansea v Gayle in which the EAT found that an employee had not been unfairly dismissed in circumstances where the employer relied on covert CCTV surveillance to support allegations of gross misconduct.
Other more recent cases include West Yorkshire Fire Service which recently settled a claim with a former employee stemming from an allegation that it had breached her human rights in respect of her right to privacy and a private life through the use of covert surveillance.
It was alleged that the employer engaged a private investigator to carry out the surveillance, as part of its investigation into allegations that the employee had been working for her own private business during a period when she had been signed off work by her GP due to ill-health.
There seems to be some key differences between this case and the Gayle EAT case, which may have been significant in the employer’s decision to reach a settlement.
This includes that surveillance took place at the employee’s home rather than public places, and that bogus telephone calls had been made to her. Another factor was likely to be that (reportedly) the surveillance did not reveal any wrong-doing by the employee.
As this case was resolved by way of a settlement agreement it is unlikely that the full details of the case will be revealed, and of course the issues were not tested in the Tribunal.
In a more recent case Caerphilly County Borough Council was ordered by the Information Commissioner’s Office (ICO) to review its approach to surveillance after hiring private detectives to conduct surveillance on an employee who was signed off sick. The ICO found the Council had breached the Data Protection Act stating that “covert surveillance should only be used in exceptional circumstances as a last resort when alternatives which respect an employee’s privacy have been considered and are not viable/appropriate.”
This case does raise a timely reminder about the current press interest in corporations and public bodies prying into the private lives of their employees, and the risk of negative publicity that this could lead to.
Covert surveillance is not common and we recommend that it should be considered carefully on a case by case basis. It is generally only used as a last resort in cases of alleged dishonesty, and employers should always be aware of their obligations under the Data Protection Act 1998.
Other blogs of interest: