Employers may suspect that their employees are skiving off work but this is often difficult to prove without using covert surveillance. The Information Commissioner’s Code of Practice gives guidance to employers (it is not mandatory for employers to comply with it) on their obligations under the Data Protection Act 1998. The Code states that it will be rare for covert monitoring of employees to be justified. So, in what circumstances can it be justified?

In City and County of Swansea v Mr D A Gayle, the Employment Appeal Tribunal (EAT) considered whether the use of covert filming as evidence of the employee’s misconduct impacted on the fairness of his dismissal and whether it amounted to a breach of his right to privacy under the European Convention on Human Rights.

What happened in this case?

Mr Gayle, who was employed by the Council, was seen playing squash at a local sports centre between 4.30-5.30pm when he should have been at work. He later ‘clocked off’ work at 5.43pm. He was seen there again about a month later at 4.55pm, shortly before he emailed his manager to say he was still at work. The Council arranged for a private investigator to covertly film Mr Gayle outside the sports centre, where he was filmed on five occasions during working hours. He was dismissed and subsequently brought a number of claims, including for unfair dismissal.

The tribunal found that Mr Gayle was in fundamental breach of his contract of employment which justified his summary dismissal, but that his dismissal was unfair because the Council’s investigation was unreasonable and disproportionate because it had evidence of what Mr Gayle was doing and did not need to covertly film him. It also concluded that the covert surveillance breached his right to privacy. However, Mr Gayle was not awarded any compensation because of contributory fault.

The EAT decision

The Council appealed to the EAT which overturned the tribunal’s decision. The EAT concluded that the tribunal’s criticisms of the Council for covertly filming Mr Gayle were irrelevant to the question of whether his dismissal was fair.

The EAT concluded that Gayle’s right to privacy had not been breached because:

  • The surveillance was in a public place so he did not have a reasonable expectation of privacy
  • Employers are entitled to know what their employees are doing during working hours
  • He was defrauding the Council, so he could not have a reasonable expectation of privacy

The EAT also found that even if the Council had breached Mr Gayle’s right to privacy, it could show two legitimate aims to justify interfering with this right: the prevention of crime and the protection of the rights and freedom of others (“others” meaning the employer who was being defrauded).

What this decision means for employers

The EAT’s decision does not suggest that using covert surveillance in disciplinary investigations will always be proportionate or reasonable, but that there are circumstances where it is appropriate and lawful to use surveillance techniques on employees. It will be difficult for an employee to successfully claim that their right to privacy has been breached where their employer reasonably suspects them of committing fraud and the surveillance is carried out in a public place.

If you are investigating an employee who is on sick leave, care should be taken with any evidence gathered from covert surveillance. In most cases, covert evidence should be assessed by a doctor, or other medical professional with appropriate qualifications, before taking any disciplinary action.