The employer in City and County of Swansea v Gayle was informed that an employee had been seen playing squash at a Sports Centre on two occasions when he was paid for being at work.  The employer secretly filmed the claimant which confirmed this and he was dismissed.

His claim for unfair dismissal in the Tribunal was successful on the basis that Article 8 of the European Convention on Human Rights (right to respect for private life) had been breached by the use of the covert surveillance.

The EAT allowed the appeal, noting that individuals in public places do not have a reasonable expectation of privacy and that an employer is entitled to know where someone is and what they are doing in the employer's time.  More importantly, the question to be asked was whether the employer had acted reasonably in treating the misconduct as a sufficient reason for dismissal.  There is no freestanding right to hold a dismissal unfair because of the Tribunal's distaste for the way the employer has behaved. 

This case has echoes of another EAT decision earlier this year where audio recordings made, this time by a claimant, were found to be admissible as evidence in a discrimination claim even though the practice of making covert recordings was noted as being "very distasteful".

One other point to note from the case is the EAT's rejection of an argument that the employer's covert surveillance was conducted in breach of the Employment Practices Data Protection Code.  Unlike the Data Protection Act itself, the Code is expressly guidance and not statutory and there may be alternative ways of meeting the Act's requirements.