Back in March we wrote a post about whether employees could use covert recordings as evidence in Employment Tribunals. However, what about the other way around? Can employers use covert surveillance when an employee is suspected of wrong-doing?
Recording employees without their knowledge can present human rights issues and we would never suggest that this is something a business does routinely. If your business undertakes CCTV surveillance on-site then you need to ensure that appropriate signs are displayed and that staff are aware that they are being recorded.
However, a recent Employment Appeal Tribunal (EAT) hearing has seen case law tested in this area. The case looked at whether employers could undertake covert surveillance in order to prove fraud.
1. The Employment Tribunal Using Covert Surveillance
The facts of the case were as follows:
- In City and Council of Swansea v Gayle, the employer was informed by two co-workers that Gayle was playing squash when he was supposed to be at work.
- The employer under took covert surveillance and gathered evidence that Gayle was indeed playing squash at times when he claimed he was working and was being paid to work.
- The employer dismissed Gayle for claiming payment for time when he wasn’t working and for absenting himself for personal activities without permission.
- Gayle raised a claim for unfair dismissal against the employer.
- The Employment Tribunal found that Gayle’s misconduct did constitute a fundamental breach of contract but found that his dismissal was unreasonable as the employer’s investigation had been ‘more thorough than it needed to be’. They also found that the covert surveillance breached Article 8 of the European Convention for Human Rights which protects the right of an individual to have a private life.
- The employer appealed against this decision.
- The Employment Appeal Tribunal (EAT) found in the employer’s favour and stated that it was unlikely that an investigation would ever be deemed to be unfair because it was too thorough. They also found that, for an employer to gather video surveillance to support oral evidence, where there is a genuine belief that an employee is guilty of misconduct, is reasonable.
- They also found that there were a number of reasons why Article 8 would not apply.
2. Lessons for Employers in the Use of Covert Surveillance
As we said, in order to justify the use of covert surveillance to gather evidence for employee issues, you do need to have reasonable grounds.
Some things that you need to consider to determine whether you are likely to breach Article 8 are:
- Where will the surveillance be taking place? If the individual is in a public place then Article 8 would not apply; peeping through house windows (a situation in when an individual has a right to expect privacy) would!
- When will the surveillance take place? If the surveillance is occurring during the employee’s working hours then an employer has a right to know where their employee is.
There are a number of other considerations that you need to make and this is a very complex area of law.
The issue of a right to privacy is a very emotional one and undertaking any activity which may breach this right needs to be carefully thought through and justifiable against specific legal requirements.
If covert surveillance is something you are ever considering, we would recommend that you get some guidance from an HR professional in the first instance so as to ensure that you follow due process.