Tinker, Tailor, Soldier...Employer

Are employers entitled to ‘spy’ on their employees as part of a disciplinary investigation, even if the employer already has the information it needs in order to fairly dismiss the employee?  The Employment Appeal Tribunal has looked at how a local Council has dealt with this question and has said that in certain circumstances, the answer is yes: employers may undertake covert surveillance of employees if misconduct is suspected, notwithstanding that the surveillance is part of an over-zealous investigation.  Anne Palmer comes in from the cold and explains more.

The background

Under section 98(2) of the Employment Rights Act 1998, misconduct is one of the five potentially fair reasons for dismissing an employee. Once an employer has established that the principal reason for a dismissal was misconduct, then an employment tribunal will go on to consider whether the dismissal was fair in all the circumstances, in accordance with equity and the merits of the case.  This is where a fair disciplinary procedure will come into play, as will the Acas Code of Practice on Misconduct and Disciplinary Procedures. 

Article 8 of the European Convention on Human Rights (ECHR) sets out that “[e]veryone has the right to respect for his private and family life, his home and his correspondence,” and goes on to state that there shall be no interference with that right by a public body without justification.  

The facts

The Claimant, Mr Gayle, was seen by a senior Council employee at a local sports centre playing squash during working hours.  On investigation it appeared that this was indeed the case: he was at the sports centre before he had officially clocked off from work.  On a further occasion the following month, Mr Gayle sent the Council a message at 5.10 pm saying that he was at work and just finishing; but he was seen at the sports centre at 4.55pm.

The Council engaged a private investigator and, on five subsequent Thursdays, he took video footage that showed Mr Gayle at the sports centre when he should have been working.  Mr Gayle had not clocked off; he was therefore playing sport during the time that the Council paid him to work.

Having found that these were the facts in the case, Cardiff employment tribunal found that the Council had a potentially fair reason for dismissing Mr Gayle, namely, misconduct.  The difficulty came in relation to the investigation undertaken by the Council and whether it satisfied the general fairness test in second part of section 98 of the Employment Rights Act.

The employment tribunal found that the dismissal was unfair because of the Council’s covert surveillance of Mr Gayle.  In particular, the employment tribunal felt that the surveillance  meant the investigation had been ‘too thorough’ because it would have been reasonable for the Council to dismiss Mr Gayle on the basis of information that it had already obtained by oral evidence; the surveillance was not necessary.  The employment tribunal found that, as a public body subject to the obligations under Article 8 of the ECHR, the Council had interfered with Mr Gayle’s right to a private life, and had no justification for doing so.  Even if the Council had not breached Mr Gayle’s Article 8 rights, the tribunal said that the dismissal would have been unfair under section 98 of the Employment Rights Act because of the Council’s “inexcusable ignorance” of its data protection obligations.

The decision

In City and Council of Swansea v Gayle, the Employment Appeal Tribunal (EAT) upheld the Council’s appeal and said that the dismissal of Mr Gayle was fair.  Specifically, the fact that the Council had gone over and above what was necessary – i.e. had been ‘too thorough’ – did not render the investigation unreasonable.

In respect of the arguments regarding Mr Gayle’s right to privacy, the EAT made the following useful points

• the video surveillance took place in a public place, where Mr Gayle could not have any reasonable expectation of privacy
• employers are entitled to know where someone is and what they are doing in the employer’s time
• a ‘wrongdoer’ should not expect that their conduct is entitled to privacy.

The EAT also went on to say that, although it did not find that there was a breach of Mr Gayle’s Article 8 rights, even if it had done so, it said it would have held that the Council’s actions were justified because

• they were preventing a crime; and
• protecting their rights under their contract with Mr Gayle.

Interestingly, the EAT commented that, however reprehensible an employer’s behaviour may be in moral or social terms, it is only the extent to which that impacts on the fairness of the dismissal which is relevant. 

Accordingly, it is only if faults in the investigation are relevant to the dismissal that it is likely that the dismissal will be unreasonable.

In the case of Mr Gayle, the investigation was disproportionate because the surveillance was unnecessary.  The fact that the surveillance went beyond what was required did not make the dismissal unfair.

Furthermore, the EAT said that it is unlikely that an investigation will ever be fatally flawed because it is too thorough – at least without the nature of the investigation having in some other way made the dismissal of the employee unfair.

What does this mean for me?

This is a positive decision for employers, as it confirms that the key question is whether covert surveillance has any substantive impact on the fairness of a dismissal; as long as the surveillance in question does not impact on the fairness of an employers decision to dismiss, even unnecessary covert surveillance is unlikely to render a dismissal unfair.

However, the Employment Appeal Tribunal did note that the Council paid no regard to the guidance in the Employment Practices Data Protection Code.  Although this is non-statutory guidance only, it is a matter of good practice to take the Code into account when undertaking surveillance of employees.

Finally, this decision is to be treated with some caution.  The EAT did not sanction all covert surveillance of employees – this is a matter which should always be carefully considered and on which advice should be taken.