Covert Video Surveillance Did Not Make Dismissal Unfair

An employer’s use of covert video surveillance did not affect the reasonableness of its investigation into the employee’s misconduct. The dismissal was therefore fair.

In City and County of Swansea v Gayle, G was twice seen playing squash when he should have been at work. The employer engaged a private investigator who covertly filmed G outside the sports centre on five subsequent occasions during working hours. G was dismissed and claimed unfair dismissal.

The employment tribunal found his dismissal unfair, deciding that using covert video surveillance made the investigation unreasonable. The investigation was too thorough as the employer already had sufficient reliable oral evidence of the misconduct from the witnesses who had seen him at the sports centre. The tribunal also found that using covert video surveillance was an unjustified interference with his Article 8 right to a private life. The dismissal was also unfair due to the employer’s “inexcusable ignorance” of its data protection obligations in relation to monitoring. It had not considered any of the matters set out in the Data Protection Code, such as carrying out an impact assessment and G had a “legitimate expectation of privacy”.

The EAT overturned the tribunal decision, finding that the tribunal’s criticisms of the employer’s covert surveillance were irrelevant to the fairness of the dismissal. The right to respect for private life under Article 8 did not apply. G was filmed outside the sports centre and taking photos of individuals in public places will not generally be a breach because there is no expectation of privacy. G was in his employer’s time when filmed and an employer is entitled to know where someone is and what they are doing during working hours. In addition, G was a fraudster and a fraudster can have no reasonable expectation of privacy.

The tribunal had also overstated the effect of the Data Protection Code. It is guidance only, with no statutory force, and the employer’s ignorance of its requirements did not make its investigation unreasonable. It was not in breach of any statutory obligation in filming G in a public place.

Part 3 of the Data Protection Code contains guidance which specifically considers the use of covert monitoring of employees. It provides that covert monitoring should only be used in exceptional circumstances and not in areas which workers would genuinely and reasonably expect to be private. Information obtained should only be used for the prevention or detection of crime or equivalent malpractice. In this case, monitoring took place in a public location, where privacy cannot be expected, and was used to support an allegation that G had defrauded the company by claiming to be working when he was not. It is perhaps not surprising therefore that the EAT considered that the employer’s investigation was reasonable and that the dismissal was fair.

The EAT also commented that it was “never likely” that an investigation would be found to be unreasonable solely on the grounds of being “too thorough”.