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Covert Surveillance - How Far Can Employers Go?

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The Employment Appeal Tribunal (EAT) has recently ruled that an Employment Tribunal was wrong when it decided that an employee who had claimed to be at work whilst playing squash was unfairly dismissed.  The employee worked for Swansea County Council and was twice spotted by a senior colleague playing squash at his local sports centre whilst claiming to be at work and indeed “clocked in”.  The Council hired a private investigator who secretly filmed the Claimant, Mr Gayle, leaving the sports centre on five occasions when he should have been working.  He was dismissed for gross misconduct and the claim led to a hearing before the Employment Tribunal.

The first Tribunal decided that the employer’s use of covert surveillance in investigating the employee’s conduct infringed his right to a private life under Article 8 of the European Convention on Human Rights.  However, the Appeal Tribunal said that the employee did not have a reasonable expectation of privacy when doing acts in public which defrauded the employer.

This ruling follows an earlier Scottish case featuring Article 8 in which the EAT held that where the employee is defrauding the employer in public view, he or she can have no reasonable expectation of privacy.  It further went on to say that the use of covert surveillance was not disproportionate since the employee was engaging in  what was effectively criminal activity – i.e. fraudulent “timesheets”.

In the Swansea case, the Court’s decision was again heavily influenced by the fact that the covert surveillance took place in a public location during the employee’s normal working hours.  Surveillance of an employee inside his or her own home may not satisfy this criterion of being in a public place.  The employee had also argued that he did have a reasonable expectation of privacy inside the sports centre but here, the filming took place outside the premises as he was leaving.

The surveillance may be seen to be a little extreme as the Council already had enough evidence of such wrongdoing because Mr Gayle had been witnessed twice playing squash but the EAT did not think that the Council should be criticised for being too thorough in its investigation in that it did more than it needed to establish a genuine and  reasonable belief in Mr Gayle’s guilt.

The case will therefore be a welcome surprise to employers who might otherwise be wary of filming employees for fear of breaching European law.  It is in many ways surprising that Mr Gayle brought his claim in the first place given that he had clearly acted in a way which constituted gross misconduct and for which he was almost certain to be dismissed.

Another purpose for  which surveillance may therefore be legitimately used is where an employer believes that an employee on sick leave and claiming full pay (or indeed any pay) is not sick at all and is defrauding the employer. We have been involved in such cases.

Paul Grindley

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