In Vaughan v London Borough of Lewisham the EAT held that secret recordings can be used in evidence against employers during Employment Tribunal proceedings. Lord Justice Underhill stated "the law is now established that covert recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable."
The EAT have now held that employers can similarly use covert surveillance to support their decision to dismiss an employee. In City and County of Swansea v Gayle, Mr Gayle was dismissed after his employer covertly obtained video evidence of him at a sports centre when he should have been at work. The EAT took into account the fact that the surveillance was taken in a public place and held that a fraudster could have no reasonable expectation of privacy. Ultimately when an employee is being paid by their employer to work, they can have no reasonable expectation that they can keep private from their employer where they are or what they are doing.
In making this decision the EAT overturned the decision of the Employment Tribunal that Mr Gayle had been unfairly dismissed. The EAT also found that Article 8 of the European Convention of Human Rights (the right to respect of private and family life) and the provisions of the Data Protection Act 1998 had not been breached.
It should be noted though that this decision does not mean that covert surveillance as part of a disciplinary investigation will always be reasonable or appropriate. Any such surveillance will very much be the exception rather than the norm.