Unfair Dismissal and Covert Surveillance

In the case of City and County of Swansea v Gayle, the Employment Appeal Tribunal (EAT) has recently held that a Tribunal was wrong to find that an employee who had been secretly filmed by his employer had been unfairly dismissed.

In the case of City and County of Swansea v Gayle, the Employment Appeal Tribunal (EAT) has recently held that a Tribunal was wrong to find that an employee who had been secretly filmed by his employer had been unfairly dismissed.

Mr Gayle worked for the council but was seen by a colleague playing squash at a time when he should have been at work and was being paid accordingly.  After being seen playing squash during his working hours at another time, the council decided to arrange for covert surveillance of Mr Gayle to be carried out by a private investigator.  Films taken by the private investigator showed Mr Gayle playing squash at various times when he should have been at work.

Mr Gayle was dismissed on the grounds of misconduct and brought claims against the council for race discrimination (which was unsuccessful) and unfair dismissal.

The Employment Tribunal found that the council had genuinely believed that Mr Gayle was deliberately claiming time he had not worked and absenting himself from work for his own personal business during work hours.  The Tribunal also found that this belief was based on reasonable grounds and that it justified dismissal.  However, the Tribunal found that there was not a legitimate reason for the surveillance to take place (as the council already had enough evidence of Mr Gayle’s misconduct) and that the surveillance was disproportionate and unjustified.

The Tribunal was influenced in its decision by its finding that the council had breached article 8 of the European convention on human rights (being the right to respect for private and family life) and its obligations owed under the Data Protection Act 1998.  Therefore, the Tribunal found that Mr Gayle’s dismissal was unfair, although it did not award any compensation as it reduced both the basic and compensatory awards by 100% for contributory behaviour.

The EAT found that, in criticising the council for covertly filming Mr Gayle, the Tribunal had not been dealing with any matter relevant to the fairness of his dismissal for the reason of misconduct.  The EAT therefore overturned the Tribunal’s decision and held that there had been no unfair dismissal, commenting that:-

• Mr Gayle was filmed outside of the sports centre and therefore did not have a reasonable expectation of privacy in this public area.  In addition, he was contracted to work at the time that he was filmed, meaning that the council was entitled to know where he was, and further that Mr Gayle was defrauding the council and therefore could have no reasonable expectations of privacy.
• The Tribunal was wrong to hold that the council was in breach of any obligations under the Data Protection Act 1998 in its surveillance of Mr Gayle.
• The Tribunal’s consideration of the surveillance and in particular its finding that it was disproportionate was not relevant to whether the dismissal of Mr Gayle was fair because this did not affect the decision of the council to dismiss Mr Gayle.

Employers should take care not to treat this case as a green light to commence covert surveillance of their employees as the facts may mean that such surveillance is not proportionate or reasonable.   Such methods of investigation can still lead to dismissals being unfair (and could also lead to other claims being made) and employers would therefore be best advised to seek advice prior to taking any such steps.