Covert surveillance and dismissal

The Employment Appeal Tribunal has handed down judgement in a case that will be of interest to all local government employers who use covert surveillance as evidence of misconduct at a disciplinary hearing. Sharon Heys explains the ruling.

The case of  Gayle v City and County of Swansea UK EAT/0501/12/RN involved an employee dismissed for gross misconduct, in part for being paid to be at work and having been found by the employer to be at a leisure club on a number of occasions whilst ‘on the clock’. The claimant claimed for unfair dismissal, direct discrimination on the grounds of race, wrongful dismissal and arrears of holiday pay. The Employment Tribunal dismissed all claims except for the claim for unfair dismissal and found in favour of the claimant on this point.

The ET found the investigation carried out by the respondent to be unreasonable because it was more thorough than it needed to have been. The ET’s view was that the respondent already had sufficient evidence in the form of witness testimony and that it needed to go no further in terms of covert surveillance.

The main thrust of the case was that the ET viewed the covert surveillance to be in breach of Article 8 of the Human Rights Act 1998. The ET also went further and took the view that the employer's apparent lack of awareness of its obligations under the Data Protection Act were sufficient to render the dismissal unfair. The upshot of the judgment was that the ET were in effect saying that an employee had a reasonable expectation of privacy even when defrauding his employer . It should be noted that the claimant was filmed outside a sports centre after playing squash at a time when he was supposed to be in work.

The council appealed on the basis that Article 8 was not engaged at all and that even if it was, the ET took the wrong approach. The EAT agreed and allowed the employers appeal substituting a finding that the dismissal was not unfair.

The EAT accepted that there had been a fundamental misinterpretation of the application of Article 8 rights and that the ET was wrong in law.

The EAT’s view was that Article 8 was not engaged in the circumstances of this case and that this was not a situation where filming occurred in a place where there was a reasonable expectation of privacy. This was particularly the case where the claimant was engaged in fraudulent activity. The EAT went on to comment that in these circumstances a "crime invites publicity and cannot legitimately demand privacy".

Although the EAT did not accept that Article 8 was engaged in any way it also made the point that even if it had been, the ET had failed to consider the legitimate aim that the employer claimed to have. These were the prevention of crime and the protection of the rights and freedoms of others – this being protecting the public purse.

The EAT concluded that this was a legitimate aim in any event.

The EAT went on to say that an employment tribunal cannot adjudicate on any freestanding claim of breach of Article 8. In an unfair dismissal case, the central question for determination is that posed by section 98 of the Employment Rights Act 1996. This requires the ET to consider whether there is potentially fair reason for dismissal along with determination of whether the employer has acted reasonably or unreasonably in all the circumstances in treating the reason as sufficient as to justify a dismissal in accordance with the principles of equity and the substantial merits of the case. Clearly, an employer has to demonstrate a genuine belief in the misconduct which is reasonably held and a thorough investigation is an important ingredient enabling him to hold that belief.

The EAT also reiterated that only faults in the investigation are relevant to whether the dismissal is unfair. They re-affirmed that there is no freestanding right to hold a dismissal unfair because an ET has a criticism, or distaste for the way in which an employer has behaved. It concluded that it is unlikely to ever be the case that an investigation will be held unreasonable because it is too thorough.

This case perhaps turned on its own facts, but the general principle is that it is permissible to undertake covert filming where there is a suspicion of dishonesty. This is not however a roving brief and Article 8 still has relevance, albeit employees will be unlikely to argue that the inclusion of covertly obtained evidence is inadmissible or unfair. Likewise, employers can take comfort that they should not be criticised for having investigated alleged misconduct too thoroughly. Finally, it reiterates the longstanding principle that the ET must consider cases on the basis of section 98 of the Employment Rights Act and the test in British Home Stores v Burchell rather than focussing a critical eye on an employer’s approach.

Sharon Heys is a Principal Lawyer at the City and County of Swansea. She can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..