Maxine Orr discusses a recent case in which an employee was dismissed for misconduct following secret surveillance by his employer. Is this a breach of privacy?
The Human Rights Act 1998 provides that it is unlawful for public sector employers to act in any way that is incompatible with the European Convention of Human Rights and Employment Tribunals are required to give effect to UK legislation as far as possible on the basis that it is compatible with these Convention Rights. An Employment Tribunal was required to consider whether the dismissal of an employee for misconduct following covert surveillance by his public sector employer i.e. City and County of Swansea v Gayle because it breached his Article 8 right under the European Convention of Human Rights i.e. the right to respect for private life. Mr Gayle worked for the Council and was spotted by a senior colleague playing squash at his local sports centre while claiming to be at work.
The Council hired a private investigator, who covertly filmed Mr Gayle leaving the sports centre on five occasions when he should have been at work. He was dismissed for fraudulent misconduct and he brought various claims before an Industrial Tribunal including unfair dismissal. The Tribunal found that the Council genuinely and reasonably believed that Mr Gayle was deliberately claiming payment for time when he was not actually working and that this potentially justified his summary dismissal however the Tribunal went on to find that the dismissal was unfair on the basis that there was no legitimate reason to place him under covert surveillance. It stated that the Council having spotted Mr Gayle playing squash on two occasions had all the evidence it needed to establish a reasonable belief in his guilt.
The subsequent use of covert surveillance was therefore unnecessary and disproportionate and constituted an unjustified interference with Mr Gayle’s right to privacy under Article 8. Indeed the Tribunal went further to state that the dismissal was unfair because the investigation was unreasonable as a result of the Council’s “inexcusable ignorance” of its obligations under the Data Protection Act 1998. However the Tribunal stated that although the dismissal was unfair, Mr Gayle was fully to blame for his dismissal and he was awarded nil compensation. The Council appealed to the Employment Appeal Tribunal which held that the Tribunal had fallen into error in finding that Article 8 was engaged in Mr Gayle’s case and stated firstly that Mr Gayle did not have a reasonable expectation of privacy as the video footage was of him in a public place i.e. outside a sports centre, secondly it was obtained “in the employer’s time” i.e. when he was contractually supposed to be working and thirdly that Mr Gayle was fraudulently engaged in his own business while being paid for by the Council.
The Employment Appeal Tribunal considered there were two legitimate aims behind the covert surveillance which was the prevention of crime and the protection of rights and freedoms of others namely the Council which had the right to protect its money and ensure that Mr Gayle behaved according to the terms of his contract of employment and the Tribunal stated that the use of covert surveillance was a proportionate means of achieving those aims. The Court further stated that regardless of whether the Council’s covert surveillance of Mr Gayle was unfair, it had no bearing on the fairness or otherwise of the dismissal. Employers with concerns should always seek legal advice prior to the use of covert surveillance. It is clear in reading this decision that the Employment Appeal Tribunal was heavily influenced by the fact that covert surveillance took place in a public location during the employee’s normal working hours however surveillance of someone within their own home would not satisfy the criterion of being in a public place.