The Employment Appeal Tribunal has recently ruled that an employee had been fairly dismissed when the main evidence against him came from video footage shot by a private investigator. The employment tribunal had concluded that the covert nature of the surveillance was sufficient to make the dismissal unfair, as this involved an infringement of Article 8 of the Human Rights Convention (the right to privacy). However it made a 100% deduction for contributory fault.
In reversing the ET’s decision, the EAT went so far as to say that Article 8 was probably not even relevant in these circumstances. The claimant had been filmed on a number of occasions emerging from a sports centre where he had been playing squash during working hours. The filming had been done in a public place, and it thought that people committing such an act of dishonesty could have no expectation of privacy in these circumstances. In any case Article 8 did not confer an absolute right to privacy. It explained that it is permissible to allow interference with this right where, among other things, it is necessary for the prevention of crime or to protect the rights of others. In cases like this, the limited interference with the employee’s Convention rights by the employer could be readily justified.
Despite the EAT’s robust reasoning, covert surveillance should be seen as a last resort. Other cases have stressed that it should be as limited as possible, should only be adopted in the absence of less intrusive alternatives, and should be conducted in accordance with the law. That means that a limited amount of surveillance either at work or in a public place during working hours is likely to be justified where the employer has grounds to believe that the employee is guilty of dishonesty, and there is no other way of gathering conclusive proof. However employment tribunals tend to view covert surveillance with some distaste. Employers are more likely to get a tribunal to see things from their point of view if evidence can be gathered by other means.