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InfoLaw Update - Covert surveillance: when to use it?

In this briefing our InfoLaw expert, Joanne advises on how and when covert surveillance can be accepted as evidence in a disciplinary and dismissal procedure.

In City and County of Swansea v. Gayle the Employment Appeal Tribunal has overturned a finding of the Employment Tribunal that the dismissal of an employee was unfair because the employer engaged in covert surveillance to show that an employee was playing squash at his local gym when he should have been in work.

Mr Gayle was seen by a senior employee of the Council attending at a local sports centre when he was supposed to be at work on two separate occasions. After the Council received this information they discovered that Mr Gayle had not clocked out until 5:43pm on one of the days that he was witnessed attending at the sports centre. On another occasion, Mr Gayle actually sent a message to his employer telling him that he was just finishing work when in actual fact he was seen going into the sports centre with his squash racket 15 minutes before he made the call.

The Council decided to employ the services of a private detective to follow Mr Gayle and to get video footage of his behaviour. A private investigator did so and Mr Gayle was videotaped entering the sports centre on four separate occasions when he was supposed to be at work. The Council dismissed Mr Gayle on the back of this evidence. Mr Gayle raised claims for race discrimination, wrongful dismissal and unfair dismissal.

The original Employment Tribunal decided that all of his claims should be dismissed apart from his unfair dismissal claim due to the fact that it considered that the Council had been wrong to use covert surveillance and had breached Mr Gayle’s right to a private life and its data protection obligations. In upholding the unfair dismissal claim, the Tribunal then reduced any potential award by 100% in light of Mr Gayle’s behaviour. The Tribunal found that the investigation was more thorough than it needed to be and a person who was defrauding their employer had a reasonable expectation of privacy in respect of his acts when doing so. The Council appealed this finding.

The Employment Appeal Tribunal overturned the Employment Tribunal’s decision confirming that it was simply wrong and misplaced.

In very general terms, covert surveillance can be accepted in situations when it is taken in a public place when it cannot be said to be intruding on an individual’s right to a private life. For example, it was permissible to take surveillance footage of Mr Gayle when he was attending at a public sports centre but it may not have been if he was playing another sport in his back garden. Employers in these circumstances need to consider where their evidence is coming from and act reasonably in all of the circumstances.

About the author

Natalie Ruane profile photo

Natalie Ruane

Natalie is a Partner and leads the Employment Law & HR team and specialises in education.

Published: Tuesday 20th August 2013
Categorised: Information Law

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