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24 July 2013

Covert video surveillance of employee

In this case, the Employment Appeal Tribunal (EAT) considered whether using covert video surveillance during the course of an investigation could result in the subsequent dismissal being ruled unfair.  Robert Hickford reports.

Facts

Mr G was employed by Swansea Council.  On 29 July 2010, he was observed by a colleague playing squash at the local sports centre during working hours.  He later rang in to the office and officially clocked off work.  He was spotted again a few weeks later, when he had rung in to the office claiming to be at work.  The council commenced an investigation, taking statements from colleagues and also engaging the services of a private investigator.  The private investigator filmed Mr G outside the sports centre, covertly, on five occasions during working hours.

As a result, the Council dismissed Mr G, who then brought a number of claims, including unfair dismissal.

The employment tribunal upheld his unfair dismissal claim, but awarded no compensation on the basis of contributory fault.

The tribunal was satisfied that the council had reasonable grounds for believing that Mr G was behaving fraudulently.  However, it found that the council’s investigation was unreasonable because it was “too thorough”. The tribunal felt that the witness statements from colleagues were sufficient; the video surveillance was a step too far. In the tribunal’s opinion, it was an “unjustified interference” with his Article 8 right to a private life under the European Convention on Human Rights.

The tribunal also held that regardless of the potential Article 8 breach, it would still have found Mr Gayle’s dismissal unfair due to what it deemed to be “inexcusable ignorance” by the Council of its obligations under the Data Protection Act 1998, as clarified by the Employment Practices Code.

Appeal

The Council successfully appealed to the EAT.  The EAT overturned the tribunal’s decision, primarily on the basis that the tribunal’s criticism of the council for covertly filming Mr G was not relevant to the fairness of his dismissal.

They held that the tribunal was wrong in deciding that Article 8 was engaged.  There was no breach of Article 8(1) for the following reasons: 1) Mr G was filmed outside the sports centre, not in it; case law has established that you do not have an absolute expectation of privacy in public places; 2) an employer is entitled to know where someone is and what they are doing during working hours; and 3) as Mr G was a fraudster, it is established case law that fraudsters have no reasonable expectation of privacy.

The EAT stated that even if Article 8 had been engaged, there are a number of possible defences, of which the council could legitimately claim “prevention of crime and protection of the rights and freedom of others”.

The EAT further held that only faults that are relevant to the overall decision to dismiss would affect the reasonableness of the dismissal.  Here, although the tribunal had found fault with the overzealous nature of the council’s investigation, this in itself could not be a fault with the decision to dismiss.   Whatever the tribunal’s view of the morality or otherwise of using the investigator, this could not affect their view of whether the dismissal was procedurally fair. If the witness statements had not supported the film footage, then there may have been an issue, but even without the footage, Mr G would still have been dismissed.

In relation to the data protection argument, the EAT pointed out that the Employment Practices Code is merely guidance, so the dismissal could not be unfair simply because of a failure to adhere to it.

As an additional point, the EAT took issue with the idea that something could be unfair just for being ‘too thorough’.

Comment

This case should not be seen as the EAT allowing covert surveillance to constitute reasonable investigation in all circumstances. The case hinged on the fraudulent activities of Mr G, and the consequent removal of protection.

The guidance in the Employment Practice Code, and previous case law, indicates that covert surveillance will rarely be justified.  This is especially relevant to cases of sickness absence, where covert surveillance is likely to be viewed unfavourably by a tribunal, unless supported by expert medical evidence.

A link to the judgment can be found here