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Covert Surveillance at Work: Should Big Brother be Watching?

I have had a busy week this week so John Dickens has kindly stepped in and produced this article about the topical issue ‘covert surveillance’ (as some of you may have read about poor Anthea Orchard). 

Most of the time, in a public environment, most of us are aware (or should be aware) that we are being watched; this is now a generally accepted fact of modern life. However being watched in the course of one’s employment can raise a number of cutting issues and cause disagreement as to whether such surveillance infringes too much on the civil liberties of the relevant employees.

Article 8 of the European Convention on Human Rights provides for the right to respect for private and family life. In the recent case of City and County of Swansea v Gayle the question was raised as to whether an employer breaches an employee’s Article 8 rights in using evidence from covert surveillance to dismiss them.

Mr Gayle was dismissed after his employer covertly obtained CCTV evidence showing him, on five separate occasions, at a sports centre where he played squash while he was being paid to work. His employer discovered this fact and so retained a private investigator to covertly film Mr Gayle outside the sports centre.

The Council dismissed Mr Gayle on the grounds of gross misconduct, specifically leaving work for his own personal reasons and claiming pay for time that he had not worked; Mr Gayle brought a number of claims at an Employment Tribunal, including unfair dismissal. The original Tribunal upheld Mr Gayle’s claim for unfair dismissal, though awarded no compensation due to his own contributory fault. It was found that the Council had reasonable grounds for believing Mr Gayle was being fraudulent, but that the employer’s investigation was “too thorough”, particularly when it considered that there was already ample oral evidence of Mr Gayle’s misconduct.

The Tribunal concluded that the covert surveillance amounted to an “unjustified interference” with his Article 8 private life, that as a public body it had a positive obligation to safeguard his Article 8 right and its interference with that right was unnecessary and disproportionate.

The Council appealed to the Employment Appeals Tribunal (EAT). The EAT allowed the appeal and held that the original Tribunal’s criticisms of the council for covertly filming Mr Gayle were not relevant to the question of the fairness of his dismissal.

The logic behind this decision was quite straightforward, that those defrauding their employer should have no reasonable expectation that their misconduct should be entitled to privacy. Given that Mr Gayle was still ‘on the clock’ when he went to play squash he had no reasonable expectation that he could keep private from his employer where he was or what he was doing.

The EAT also found that even if the dismissal was already sufficiently justified on oral evidence, the original Tribunal was incorrect to find unfair dismissal on the basis of the covert footage.

If you are an employer and need advice on dealing with employees on sockness absence please contact a member of our team for a free consultation on 0113 350 4030 or at hello@scesolicitors.co.uk.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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