In the case of City & County of Swansea v Gayle, the Employment Appeal Tribunal (EAT) considered whether an employer’s use of covert video recordings during a disciplinary hearing affected the fairness of the employee’s dismissal.
Factual Background Mr Gayle, who was employed by the Council, was seen by a colleague playing squash at a local sports centre between 4:30pm and 5:30pm when he should have been at work. Mr Gayle clocked off from work that day at 5:43pm. A similar incident occurred the following week and at which point the Council engaged the services of a private investigator who covertly recorded Mr Gayle on a further five subsequent occasions visiting the sports centre during working hours.
The Council invited Mr Gayle to attend a disciplinary hearing and Mr Gayle was ultimately dismissed for carrying out his own business during work time and claiming pay for time that he had not been at work, essentially defrauding his employer out of salary payments.
Mr Gayle then brought a number claims at the Employment Tribunal (Tribunal) including unfair dismissal. The Tribunal upheld Mr Gayle’s claim for unfair dismissal on the basis that the covert recording relied on by the Council involved an unjustified interference with Mr Gayle’s right to a private life in terms of Article 8 of the European Convention on Human Rights (ECHR). The Tribunal further found that even if it was wrong about the breach of Article 8, Mr Gayle’s dismissal was still unfair because of the Council’s inexcusable ignorance of its obligations under the Data Protection Act 1998. The Council appealed against the decision.
Decision The EAT overturned the Tribunal’s decision, finding the dismissal was fair and held that the Tribunal’s criticisms of the Council for covertly recording Mr Gayle were irrelevant to the question of the fairness of his dismissal. The EAT also held that Article 8 of the ECHR was not engaged and that the employer’s ignorance of the Data Protection Act and Employment Practices Code did not make the investigation unreasonable.
Case Comment Fraser Auld, an Associate within our Employment team at Lindsays advises: “Employee’s will typically argue that covert recording is a breach of their right to a private life and/or a breach of the Data Protection Act. The EAT’s judgement provides employers with useful guidance as to the considerations a tribunal will have in these circumstances. In relation to the Article 8 breach of private life point, the key observations of the EAT were as follows: • the recording of Mr Gayle was filmed outside the sports centre and recording of an individual in a public place would not breach Article 8 as individuals do not have reasonable expectations of privacy in public; • Mr Gayle was in his employer’s time when he was recorded. An employer is entitled to know where an employee is during their working hours and as such Mr Gayle could not expect privacy during this time; • Mr Gayle was essentially committing fraud. A person in those circumstances can have no reasonable expectation of privacy.
As is always the case in unfair dismissal decisions, this case turns very much on its own facts and does not suggest that covert recording will always be proportionate or reasonable. The Information Commissioner points out in the Employment Practices Code that it will be rare for covert monitoring of employees to be justified and an employer considering taking any such action should take advice before doing so.”
