The Big Brother effect…

28 Aug 2013

In City and County of Swansea v Gayle, the Employment Appeal Tribunal (EAT) considered whether covert surveillance carried out by an employer was in breach of an employee’s right to privacy under Article 8 of the European Convention of Human Rights.

Mr Gayle worked for City and County of Swansea Council.  One Thursday, a colleague saw him playing squash between 4.30pm and 5.00pm at a local sports centre.  On investigation, Mr Gayle had not ‘clocked off’ until 5.43pm that day.  A similar occurrence happened a month later, at which point the Council hired a private investigator who carried out covert video surveillance showing Mr Gayle at the sports centre on five other occasions when he had not ‘clocked out’.  The Council subsequently dismissed Mr Gayle for gross misconduct.

Mr Gayle later brought a claim for unfair dismissal.  At first instance, the Employment Tribunal found in his favour.  Despite stating that Mr Gayle was in fundamental breach of his contract of employment with the Council, justifying his summary dismissal, it held that the investigation was ‘too thorough’ and unnecessary in light of the fact that the Council already had sufficient evidence from Mr Gayle’s co-worker.  It also stated that the use of covert surveillance was in breach of Mr Gayle’s right to privacy under Article 8 and the Council’s obligations under the Data Protection Act 1998.

The Council appealed the Employment Tribunal’s decision.  On appeal, the Employment Appeal Tribunal (EAT) found that there had not been a breach of Article 8.  The surveillance was of a public place where Mr Gayle could not have a reasonable expectation of privacy, especially if he was acting fraudulently.  Furthermore, the Council were entitled to know what Mr Gayle was doing during paid working hours.  The EAT also stated that the Employment Tribunal was wrong to find that Mr Gayle had been unfairly dismissed because of the inappropriate use of secret filming.  Mr Gayle’s misconduct had already been sufficiently evidenced and therefore the surveillance was irrelevant to his dismissal.

Our view:

This case does not give employers a green light to use covert surveillance as a routine means of investigating an employee’s misconduct.  The EAT’s decision in this case was heavily influenced by the fact that Mr Gayle’s fraudulent activities were being carried out in a public place, during working hours.  In practice, less contentious methods of investigation are preferable, with video surveillance being reserved for occasions when misconduct cannot be sufficiently evidenced by other means.

On a lighter note, this is the first time we have heard of an investigation being criticised for being "too thorough"!