In Swansea v Gayle, the EAT were asked to consider the issue of an employee’s right to privacy under the European Convention on Human Rights ("the Convention") in the context of an unfair dismissal claim.

The employer in this case had used covert surveillance to record video evidence showing that the employee was at a local sports centre playing squash when he should have been at work. The employment tribunal considered that the level of surveillance was disproportionate and unjustified and, for that reason, held that the dismissal was unfair (although the Claimant was awarded nil compensation).

The EAT overturned the employment tribunal's decision. Tribunals do not have jurisdiction to adjudicate on breaches of the Convention. The tribunal’s job is simply to decide whether the dismissal was for a fair reason and then whether, in the circumstances, the employer’s decision to dismiss was ‘within the range of reasonable responses’. That was clearly so in this case and therefore the dismissal was fair.

Point to note –

  •  Key factors in this case were that the employee was filmed in a public place (where he could have had no expectation of privacy) and he was filmed at a time when he was meant to be at work – so in his employer’s time.