The UK Employment Appeal Tribunal (EAT) recently decided that an employer’s use of covert video surveillance in its investigation into an employee’s alleged misconduct and his subsequent dismissal, was not unreasonable. 

An employee was dismissed after his employer discovered he was playing squash when he claimed to be at work. The employee was seen playing squash by a colleague on two occasions during work hours and the colleague reported this to the employer. The employer engaged a private investigator to investigate the issue. The private investigator took video footage of the employee outside the sports centre on a number of occasions when he should have been at work.

The UK Employment Tribunal decided that the dismissal was unfair due to the employer’s use of covert surveillance which was “distasteful”. It noted that the employer’s use of covert surveillance was unreasonable as it already had sufficient evidence of the employee’s misconduct. It also considered that the employer’s use of covert surveillance was a breach of the employee’s right to privacy and demonstrated an inexcusable ignorance of its obligations under the UK’s data protection legislation. The Tribunal’s finding was appealed to the EAT.

The EAT overturned the Tribunal’s decision and decided that the employer’s use of covert surveillance did not render the dismissal unfair. The EAT rejected the finding of a breach of the employee’s right to privacy on the basis that an employee has no right to privacy when defrauding his/her employer. It further stated that the employee had no reasonable prospect of privacy, in any event, as the footage was taken in a public place. It also noted that the employer’s behaviour in conducting the dismissal could only be taken into account to the extent that that it impacted on the fairness of the dismissal. In this instance, the covert surveillance was not relevant to the dismissal (because the employer already had sufficient evidence of the employee’s misconduct) and accordingly it could not be used as a basis for holding the dismissal as unfair.

Recent media reports of conversation recorded between bank employees highlight that many employers have facilities in place to monitor employee conduct/behaviour and may wish to use such information as part of an investigation process. In order for employers to legitimately rely on such information, it is essential that any monitoring of staff is done in a fair and reasonable manner and in accordance with employment law and data protection legislation. The most effective way of achieving this is by implementing an appropriate policy which employees are made aware of. As these UK decisions dictate, there are a number of potential pitfalls which need careful guidance on if they are to be avoided.