Covert Surveillance

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The problem

Imagine that one of your employees claims to be at work but is spotted at the local sports centre playing squash instead.  As an employer, you would have legitimate questions about the employee’s conduct and so you decide to start an investigation. In order to get concrete evidence of the employee’s misdemeanours you decide to instruct a private investigator who later produces video evidence showing the employee enjoying recreational pursuits whilst allegedly at work.

The principle

This was a situation faced by the City and County of Swansea (the Council).  It was discovered following the appointment of private investigators that one of the Council’s employees, Mr Gayle, was not where he should have been. The private investigator could show Mr Gayle was (on five occasions) at a local sports centre despite being paid to work.  Mr Gayle was dismissed for gross misconduct but later argued that his dismissal was unfair.

The Employment Tribunal agreed with Mr Gayle’s claim.  It noted the investigation was unreasonable because it was “too thorough”. The Tribunal was particularly critical of the Council’s use of covert surveillance when it already had sufficient reliable oral evidence of Mr Gayle’s misconduct (i.e. it was considered unnecessary and disproportionate). The Tribunal concluded that the surveillance evidence  was ‘distasteful’ and involved an “unjustified interference” with Mr Gayle’s right to a private life (under Article 8 of the European Convention of Human Rights).

The Employment Appeal Tribunal (EAT) however overturned this decision.  The EAT stated that the Tribunal’s criticisms of the Council were irrelevant.  According to the EAT, the reasonableness of the investigation had to be seen in the context of the employer’s decision to dismiss.  The behaviour of the employer is only relevant to the extent to which it impacts upon the fairness of the dismissal.

The practice

Noting that the video evidence was taken in a public place, the EAT concluded that “fraudsters” can have no reasonable expectation to privacy pursuant to human rights legislation. Indeed, when an employee is on his employer’s time, he can’t expect to keep information about what he is up to and his whereabouts hidden from his employer.  The EAT also noted that the use of video surveillance could not, in these circumstances, render the dismissal procedurally unfair.

Employers occasionally question us on the legitimacy of obtaining video evidence through covert surveillance (although only in extreme cases is such surveillance obtained). This case will give employers a little more confidence that results of covert surveillance may be legitimately used in Tribunal proceedings. However, consideration should still be given to the proportionality and reasonableness of using covert surveillance in disciplinary matters.  Indeed, care must be taken when instructing private investigators to ensure they keep on the right side the law. After all, video evidence resulting from surveillance of an employee on their private property, for example, will not be legitimate.

City and County of Swansea v Gayle (UKEAT/0501/12)

For further information, help or advice please contact Tim Davies on 0191 211 7927.