The Right To Privacy Versus The Use Of Covert Surveillance

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...