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Is Big Brother watching?

In the recent Employment Appeal Tribunal (EAT) case of City and Council of Swansea v Gayle the decision to hold a fraudulent squash player as being unfairly dismissed was overturned. He was, in fact, dismissed fairly.
Facts and Decision at the Employment Tribunal
The dismissed Council employee claimed to be working when he was in fact playing squash at a local sports centre. He was spotted there on two occasions by a senior colleague and, as a result, his employer hired a private investigator to gather further evidence of his sneaky wrongdoing. The squash enthusiast was covertly filmed on five further occasions.
Consequently the Council dismissed him for fraudulent misconduct. This prompted the dismissed to bring various claims to the employment tribunal, including one of unfair dismissal.
In the first instance the tribunal found that the employee had been dismissed unfairly, despite the fact the Council could already genuinely and reasonably believe the employee was claiming payment when he was playing sport instead (which potentially justifies summary dismissal), because there was no legitimate reason to place him under covert surveillance.
In other words, the two occasions the employee was spotted would have been enough evidence of guilt. The fact they went further and hired the investigator was, in the view of the tribunal, unjustified, disproportionate and unnecessary and therefore constituted an unjustified interference with the employee’s right of privacy under Article 8 of the European Convention on Human Rights.  
It was noted that the Council had demonstrated ‘inexcusable ignorance’ by virtue of failing to carry out any risk assessment of the surveillance nor did they place a time limit on the operation.
The Council appealed the tribunal’s finding of unfair dismissal.
It must be noted that the employee was held to be unfairly dismissed by the tribunal, but the compensatory award was nil because as he was fully to blame for his dismissal.
EAT overturned the decision
The EAT decided it was plainly wrong to consider the employer’s use of covert investigatory surveillance of the misconduct as an infringement of the employee’s right to private life under Article 8.
In essence, no employee can hold any reasonable expectation of privacy when doing acts in public during their employer’s time. The footage clearly showed the employee defrauding his employer.
Nevertheless it would be correct for an employment tribunal to regard the employer’s use of covert surveillance as reprehensible, particularly given the fact the employee had been spotted playing squash on two occasions prior to the hiring of the private investigator. In other words, they already had the evidence.
In it’s decision the EAT made reference to an additional point made in the Scottish case of McGowan v Scottish Water, in which it was stated that the use of covert surveillance is not disproportionate since the employer was investigating criminal activity – i.e. fraudulent time sheets. Committing a crime attracts publicity and cannot legitimately demand privacy.
The employee’s Article 8 rights were not infringed because the Council had a right to protect its money and to ensure the employee was working in accordance with his contract of employment.
The fact the council’s behaviour in hiring an investigator was perhaps unfair had no bearing on the fairness of the dismissal. The decision suggests that covert surveillance is more likely to be justified when the wrongdoing is fraudulent or otherwise criminal.  In the end the investigation was viewed as the Council merely being thorough in gathering evidence needed to establish a reasonable belief in the employee’s guilt: the key factor being that the surveillance was in a public place. The position may be more complex in other situations, for example, when the employee is in the privacy of his own home.

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