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Covert surveillance: to use or not to use?

In the case of City and County of Swansea v Gayle the EAT has allowed the Respondent’s appeal against a finding of unfair dismissal where the Respondent employer had secretly filmed the employee outside a sports centre when he should have been at work.

The employee had not clocked out of work and was still being paid when he was spotted at a sports centre by a senior employee. On another occasion the employee was seen at the sports centre when he should have been at work. The Council followed this up with covert surveillance by a private investigator. On 5 subsequent occasions the employee was filmed at the sports centre when he should have been at work and when he was in fact being paid to work.

At first instance the Employment Tribunal found that the employee had been unfairly dismissed. The Tribunal found that the right to a private life under Article 8 of the European Convention on Human Rights was engaged and the Respondent had clearly breached the Article. In addition the dismissal was found to be unfair due to the Respondent’s investigation being unreasonable (overly thorough) and the employer’s lack of awareness of its obligations under the Data Protection Act 1998. The compensatory award was reduced to nil due to the employee’s contributory fault. The Respondent appealed.

The EAT allowed the Respondent’s appeal. The dismissal was found to be sufficiently evidenced without the covert surveillance. The covert surveillance, whether carried out rightly or wrongly, was therefore irrelevant to the dismissal. It was found that a dismissal is only likely to be held unreasonable where the faults in the investigation are relevant to the dismissal itself.

The EAT did note that the surveillance took place in a public place (outside a sports centre) and so the employee had no reasonable expectation to privacy. When the employee was supposed to be at work and was being paid to be at work, he had no expectation that he could keep where he was or what he was doing private from his employer. Article 8 of the European Convention on Human Rights was not therefore breached in these circumstances.

This is an interesting case for employers as it demonstrates that dismissals will not necessarily be unfair when covert surveillance is used as part of the dismissal process. Employees acting fraudulently on employer’s time cannot expect their actions to be kept private from the employer. However, employers would be well advised to tread with caution. Following the correct procedures and being mindful of their obligations under the Data Protection Act 1998 would inevitably put an employer in a better position. The decision in this case was based very much on the facts of the case and the strong case for dismissal regardless of the covert surveillance.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further