In the recent weeks, the Employment Appeal Tribunal (EAT) has overturned a decision of the Employment Tribunal that the use of covert surveillance had rendered the dismissal of a public sector employee unfair.
The employee had twice been spotted by a senior colleague playing squash at his local sports centre during his normal working hours. His employer then hired a private investigator who secretly filmed him when he was leaving the sports centre on five separate instances during his normal working hours.
Despite the tribunal finding that the employer had genuinely and reasonably believed that the employee was defrauding them by playing squash when he was supposed to be working, the tribunal held that the evidence of the senior colleague should have been sufficient for a summary dismissal without the need to secretly film the employee.
The Employment Tribunal therefore found that the use of covert surveillance had been unnecessary and disproportionate, with the result that it was in contravention of the employee’s right to respect for private life under the European Convention of Human Rights.
In overturning the decision the EAT highlighted three key reasons as to why the employee’s human rights had not been infringed:
The video footage of him had been taken in a public place. (The point would have been more marginal had the filming occurred inside the sports centre rather than outside.)
The footage was obtained in ‘the employer’s time’, when the employee was contractually subject to the employer’s reasonable direction.
The employee was fraudulently engaged in his own business while being paid by the employer.
The EAT did not go as far as to say that it would always be justifiable to use covert surveillance to try to establish an employee’s misconduct, and it remains the case that covert surveillance will be easier to justify where the employee is suspected of committing a criminal offence in the course of their employment.
The EAT also found that the means of obtaining the evidence against the employee was not relevant to the question of whether the employer sustained a reasonable belief in the employee’s guilt. The use of covert surveillance really goes to the reasonableness of the employer’s investigation, but the EAT made the point that an employer could rarely be criticised for being too thorough in its investigations.