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Dismissal based on covert surveillance held to be fair

On occasion it will be necessary for employers to consider using covert surveillance on employees. Can a dismissal based upon such surveillance be…

On occasion it will be necessary for employers to consider using covert surveillance on employees, where it is believed that they are defrauding the organisation or involved in other acts which could be gross misconduct. Can the dismissal of someone based upon such surveillance be fair? In a helpful decision for employers, the Employment Appeal Tribunal has held that it certainly can and in the particular case (in fairly robust terms) found that it was wrong for a dismissal to be held unfair because of concerns about the conduct of the covert surveillance by the employer.

The detail

Mr Gayle, an employee of City and County of Swansea, was seen playing squash at a local sports centre when he should have been at work. When this was checked, he had clocked off at a time after he was seen at the centre. The Council arranged covert surveillance by a private investigator. This resulted in video of Mr Gayle leaving the sports centre on five occasions when he was recorded as being at work. After he was dismissed, the Employment Tribunal which initially heard the case found that his dismissal was unfair because of the surveillance and how it had been conducted. They focussed on Mr Gayle’s human right to a private life and were critical of the steps taken by the Council in arranging the surveillance, which did fall well short of the standards expected under the Employment Practices Data Protection Code issued by the Information Commissioner.

The Employment Appeal Tribunal has overturned this decision and held the dismissal to be fair. They focussed on the key questions in an unfair dismissal case: was the dismissal for a fair reason; and, if so, whether the employer’s action in treating the reason as dismissible was reasonable. Here, Mr Gayle had taken time off work during the working day and claimed pay for it. The EAT said that this meant the dismissal was fair. They state that dismissal should not be held unfair because of distaste for the way the employer has behaved or because an employer’s conduct might be reprehensible.

This Judgment is also particularly reassuring on the balance between an employee’s human rights and the rights of employers. It says human rights will rarely be infringed where the surveillance is undertaken in public places. The aims of preventing crime and protecting the rights and freedoms of others are also highlighted as legitimate aims for taking steps which might otherwise infringe such rights. The EAT say this includes the right of the employer to investigate whether an employee has acted in a way which complies with his contractual obligations.

What does this mean for me?

In our experience employers are, understandably, reticent to use covert surveillance. This Judgment is reassuring in holding that evidence obtained through it can be relied upon to dismiss. In Employment Tribunal the focus should be on what the evidence proves, not how it was obtained. Sometimes it can be the best way of obtaining the evidence that provides the genuine basis to dismiss.

Care should still be taken in arranging such surveillance. If this Council had undertaken some relatively simple steps, such as undertaking an appropriate risk assessment and clearly outlining in their instructions to the investigator the limits to his surveillance, they would have been in a far stronger position in the Tribunal. Such steps may also be essential for you if you are required to respond to the Information Commissioner, should a complaint be made.

Comment

If you are considering the possibility of using covert surveillance please do speak to your usual contact in the Weightmans employment team, who will be able to talk you through the pros and cons, and the steps you should put in place if that is the route you decide to take.

This case, alongside many others, will be explored in our forthcoming employment update seminars (for which the details can be found on our website).

If this raises any issues for you or your organisation, please speak to your usual contact in the Weightmans' employment team. You can also contact Phil Allen – Partner at Weightmans on 0161 214 0504 or phil.allen@weightmans.com.