Business Law: Andrew West highlights a recent ruling on the use of video surveillance by an employer

The recent case of City and County of Swansea v Gayle looked at the issue of whether covert video surveillance breached an employee’s right to privacy, and made his dismissal unfair.

Mr Gayle was believed to have been playing squash at a sports centre when he was supposed to be at work and was being paid. A fellow employee had seen Mr Gayle playing squash, when he should have been at work.

About a month later, Mr Gayle was seen again at the same centre during working hours, despite having informed his manager that he was at work. The council engaged a private investigator, who covertly filmed Mr Gayle outside the sports centre on five subsequent occasions during working hours.

It may not be a surprise that Mr Gayle was dismissed for leaving work without permission and claiming pay for time that he had not worked. Mr Gayle brought a claim of unfair dismissal.

The Employment Tribunal decided that Mr Gayle had been unfairly dismissed. It accepted that whilst the council had reasonable grounds for believing that Mr Gayle was behaving fraudulently, the council’s investigation was unreasonable because it was “too thorough”.

It was critical of the council’s use of covert surveillance, when it already had sufficient reliable witness evidence of Mr Gayle’s misconduct - the surveillance involved an “unjustified interference” with Mr Gayle’s right to a private life. As a public body, the council had to safeguard his human rights and its interference with that right was unnecessary and disproportionate.

The council appealed. The Employment Appeal Tribunal reversed the decision and said that the dismissal was fair. The video evidence was taken in a public place (when Mr Gayle emerged from the sports club). Mr Gayle should have had no reasonable expectation of privacy in those circumstances. He was playing squash on his employer’s time and his employer was entitled to know where he was. A balancing act also had to be struck and a fraudster could not have a reasonable expectation of privacy.

This case resonates with the emerging case law that we are seeing in relation to employee misuse of social media, in which the courts and tribunals are taking a dim view of an employee’s suggestion that their activity on social media can have any expectation of privacy.

What is clear is that employees should have no real expectation of privacy at work, if they are engaging in misconduct. In this case, the use of covert surveillance probably was unnecessary, but employers should take some comfort in the fact that an “overly thorough” investigation will not make a dismissal unfair.

: : Andrew West is employment law partner at Gotelee Solicitors.