Covert Surveillance Is Not Always Unfair

The covert surveillance of an employee did not amount to an unreasonable investigation or a breach of the employee's right to privacy under Article 8 of the European Convention on Human Rights, the Employment Appeal Tribunal has held in City and County of Swansea v Gayle (UKEAT/0501/12/RN), and accordingly the dismissal was fair.

Mr Gayle was employed by City and County of Swansea.  He was seen at a local sports centre on a Thursday afternoon by another employee of the Council but had apparently not left work until almost 6pm that day.  The Council employed a private investigator who filmed Mr Gayle at the sports centre on five subsequent Thursday afternoons, at times during which Mr Gayle claimed to be at work.  Mr Gayle was summarily dismissed for gross misconduct. He brought claims of unfair dismissal and race discrimination against the Council.  The Employment Tribunal rejected the discrimination claim but held that Mr Gayle had been unfairly dismissed because the use of covert surveillance during the investigation was unnecessarily thorough, unreasonable and breached Mr Gayle's right to a private life under Article 8 of the European Convention on Human Rights.

The EAT disagreed and held that covert surveillance was reasonable in these circumstances.  Mr Gayle had been filmed (a) in a public place and (b) on his employer's time, during which the Council was entitled to know where he was and what he was doing.  The EAT also held that Mr Gayle had been acting fraudulently by engaging in his own activities whilst receiving money from the Council and could therefore have no reasonable expectation that he was entitled to privacy.  It therefore overturned the finding of unfair dismissal. 

It is encouraging to employers that covert monitoring will not necessarily make a dismissal unfair or be considered unreasonable. However, each case will turn on its own facts and the outcome may have been different had the surveillance been on private premises rather than on public land.